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

Lozi and Secretary, Department of Social Services (Social services second review) [2017] AATA 1041 (6 July 2017)
Division:GENERAL DIVISION
File Number(s):2016/5504
Re:Abdul Gani Lozi
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Member
Date:6 July 2017
Place:Sydney

The decision under review is affirmed.
...........................[sgd].............................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – 20 points or more under the Impairment Tables – mental health condition – spinal condition – other conditions – decision under review is affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
6 July 2017

On 16 December 2015 Mr Lozi, who is now 62 years old, lodged a claim for Disability Support Pension (DSP).
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 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.
In a decision dated 9 August 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Lozi’s claim. The AAT1 found that Mr Lozi’s medical conditions warranted a total rating of 5 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act.
In this proceeding Mr Lozi seeks review of the decision of the AAT1.
At the hearing, Mr Lozi was self-represented and assisted by an Arabic language interpreter.
ISSUES
In order to qualify for DSP Mr Lozi 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 clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 16 December 2015 and 16 March 2016 (the claim period).
Section 94(1) of the Act provides that a person is qualified for DSP if:
·the person has a physical, intellectual or psychiatric impairment (94(1)(a));
·the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and
·the person has a continuing inability to work as defined by the Act (s 94(1)(c)(i)).
The Respondent concedes, and the Tribunal accepts, that Mr Lozi suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
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)).
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));
·fully treated (paragraph 6(4)(b));
·fully stabilised (paragraph 6(4)(c));
·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).
The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”
Also, the Introduction to Table 5 of the Impairment 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).”
Mr Lozi contends that he suffers significant impairment as a result of medical conditions with respect to his mental health, spine, upper limbs and vision. Other medical conditions include osteoarthritis, hernia, asthma and gastro-oesophageal reflux.
The Respondent contends that during the claim period, Mr Lozi’s mental health condition was permanent and that a rating of 5 points under Impairment Table 5 can be assigned.
The Respondent contends that the spine, upper limb and vision conditions and the hernia should be considered as fully diagnosed but not fully treated and stabilised during the claim period and, therefore, cannot be assigned a rating under the Impairment Tables.
The Respondent contends that Mr Lozi’s asthma and gastro-oesophageal reflux can be considered permanent but should be assigned 0 points under the Impairment Tables.
Therefore, the definitive issue in this matter is whether, during the claim period, Mr Lozi’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had “a continuing inability to work”.
MR LOZI’S EVIDENCE
At the hearing Mr Lozi’s oral evidence was somewhat limited as he appeared to have difficulty with his memory. In fact, he told the Tribunal that his most difficult health problem has been his memory which has been gradually deteriorating over the previous two years. As examples, he explained that frequently he forgets to take his medication and recently he had spent “55 minutes” searching for his car because he had forgotten where he had parked. He added that his other main problems included being moody, frequently getting angry and poor vision, particularly at night.
Mr Lozi lives with his wife and two of his seven children. With respect to all self-care, Mr Lozi emphasised that he is able to manage all his self- care without assistance.
Mr Lozi said that he is able to drive an automatic car but limits himself to short distances and does not drive at night. He said that he regularly visits his elderly mother who lives in another suburb about six minutes away by car. Sometimes he drives himself alone and sometimes he is accompanied by one of his children.
Mr Lozi frequently attends the local mosque, usually accompanied by a friend or one of his sons. Sometimes his wife drops him off when she goes shopping.
Mr Lozi told the Tribunal that he is able to use public transport alone if he plans the route before leaving home. I note he was able to attend the Tribunal by train without assistance.
On 26 October 2014 Mr Lozi travelled to Lebanon and returned to Australia on 1 January 2015. He explained that he travelled with a friend and that they spent their time visiting with relative and friends.
On 25 April 2015 Mr Lozi again travelled to Lebanon and returned to Australia on 30 May 2015. On this occasion, he said that he was accompanied by his wife and that they spent their time visiting relative and friends. Mr Lozi added that his psychiatrist had suggested that visiting his relatives and friends in Lebanon would be good for his mental health and said that while in Lebanon he “felt amazing”.
MENTAL HEALTH CONDITION
Dr Ali - Psychiatrist
In a letter dated 10 December 2003 Dr Ali states, inter alia, the following:
Mr Lozi has given me a several month history of mixed depressive symptoms including depressed moods, occasional sleep difficulty, poor appetite and some loss of weight…..the onset of symptoms has been over the past six months and they have been fluctuating in intensity. Mr Lozi did not give me any past history of depression or any other problem…..This basically appears to be a case of adjustment disorder with depression and there were multiple environmental factors…..he has already been started on Aropax I have told him to continue with this medication for a while longer and if he does not respond he can increase it to two tablets per day. If there is no response I will try him on another medication like Efexor or Avenza.
In a brief letter dated 3 May 2007 Dr Ali states inter alia the following:
I note from my records he saw me three years ago…since then I have not seen him although he told me he has seen Dr Maghazaji in Lakemba from time to time. He came to seem me for a review of his situation, apparently there has not been much change and he is happy with the medication...Luvox 100, 1 at night Serequil 25 mg 1 bd…[sic]..he told me he still feels depressed occasionally and has mood swings…I have advised him to increase Luvox to one and a half tablets at night and later on to two if necessary. Serequil 25 mg can be given three times a day as he receives some sedating effect from this medication…
In a brief letter dated 26 March 2015 Dr Ali stated that he reviewed Mr Lozi on 11 March 2015 and noted the following:
I saw him a long time ago possibly more than a year…as you will note from my previous letter this is basically a case of Dysthymia (chronic depression). He told me his depression had improved slightly but he is still having difficulty in sleeping. I note he is taking Serequil 100 mg [sic] at night and Luvox 100 mg, I have increased his Luvox to 200 mg at night and I told him if he is unable to sleep to push it up to three tablets at night
In a very brief letter dated 4 March 2016 Dr Ali notes that he has reviewed Mr Lozi “after a long time” and that he still has depressive symptoms and continues on “Serequil 100 mg [sic], one at night”.
The Tribunal was provided with copy of the Department of Human Services Medicare Patient History Report (Medicare report) based on date of service for the period of 1 January 2014 to 12 April 2017.
The Medicare report indicates that Mr Lozi was seen by Dr Ali as an initial consultation on a new patient on 11 March 2015 and as an attendance of more than 15 mins not more than 30 mins on 20 October 2015 and 10 February 2016.
On 19 April 2016 Mr Lozi was seen by Dr Ali as an attendance of more than 30 minutes but not more than 45 minutes duration and for the shorter consultations on 16 August 2016, 24 October 2016 and 16 January 2017.
Dr Alsayed – General Practitioner
In a Centrelink Medical Report dated 3 July 2015 Dr Alsayed states that Mr Lozi has been his patient since 2001 and lists adjustment disorder with depressed mood as the medical condition with the most functional impact.
Current treatment is noted as Serequil 100 mg [sic] commenced in 2006, Luvox 100 mg commenced in 2005 and counselling. Impact on ability to function is described as “poor concentration to perform tasks, inability to obtain new skills” but no other details.
In a Medical report dated 6 January 2016 Dr Alsayed states that Mr Lozi suffers from “major depression” and list numerous self-reported symptoms but provides no real assessment of functional impact. A list of current medication includes fluvoxamine 100mg at night but no mention of quetiapine. It is also noted that Mr Lozi is being seen by a psychologist for cognitive behavioural therapy (CBT).
In a report dated 8 August 2016 Dr Alsayed states that suffers from a “severe and chronic depression and anxiety disorder and notes current medication as fluvoxamine (Fluvox) 100 mg at night and quetiapine (Seroquel) 50 mg at night.
Dr Alsayed states that Mr Lozi complains of “poor memory, depressed mood, lack of energy and social isolation”, no longer enjoys his previous daily activities and has been referred to a psychiatrist who prescribed antidepressants and is being seen by a psychologist.
Dr Alsayed rated Mr Lozi as suffering severe functional impairment under Impairment Table 5 on the basis, inter alia, that he has “severe difficulties with self-care…extreme difficulties with interpersonal relationships…does not leave home unless accompanied by a family member”.
In a report dated 21 February 2017 Dr Alsayed states that Mr Lozi suffers from “major depression disorder which began several years ago and has since worsened”. He notes current medication as fluvoxamine 100 mg at night, quetiapine 25 mg daily and 100 mg at night.
Dr Alsayed notes the reason for quetiapine is “Bipolar”. I note that there is no evidence that Mr Lozi suffers from “bipolar disorder”.
I note that the Pharmaceutical Benefits Scheme (PBS) website states that the prescribing of “quetiapine” requires authorization with the clinical criteria limited to the treatment of schizophrenia, acute mania and bipolar I disorder.
In a report dated 16 March 2017, which is essentially a copy of the previous report but with an added paragraph in which Dr Alsayed states that “Mr Lozi was referred to Dr Ali (psychiatrist) on 26/5/2016 because of the deterioration of his depression. Dr Ali increased the dose of his medication to Seroquel 25 mg mane and 100 mg nocte and increased his Luvox to 200 mg a day.
As noted above Dr Ali saw Mr Lozi on 11 March 2015 and in his letter of 26 March 2015 did not suggest an increase in the dose of “Serequil” but did increase the dose of Luvox to 200 mg at night. However, in his reports of 6 January 2016, 8 August 2016 and 21 February 2017 Dr Alsayed notes that current medication includes 100 mg nocte.
Also, the Medicare report indicates that during 2016 Dr Ali saw Mr Lozi on 4 occasions; 10 February, 19 April, 16 August and 24 October. The only correspondence with regard to these consultations is a very brief letter in which Dr Ali confirms that Mr Lozi continues “Serequil 100 mg one at night”.
Mr Metry – Psychologist
The Medicare report indicates that Mr Lozi was seen by Mr Metry on six occasions between and including 8 September 2015 and 2 February 2016.
In a brief letter dated 2 February 2016 Mr Metry states that “It appears that Mr Lozi is suffering from Major Depressive Disorder” and that he has received six psychological therapy sessions in the form of CBT.
Mr Metry states that following the structured program Mr Lozi has “demonstrated a slow improvement in his psychological condition” and that he would benefit from continuing psychological therapy.
Mr Metry provides no assessment as to the functional impact of Mr Lozi’s psychological condition.
In a brief letter dated 17 January 2017 Mr Metry noted that Mr Lozi was appropriately dressed, alert and oriented in time, place and current information, gave no indication of thought disorder, delusions or hallucination. Mr Lozi appeared to be physically uncomfortable, depressed and worried, still had ongoing symptoms of depression and complained of chronic pain.
Mr Metry stated that Mr Lozi had received a further six CBT sessions and recommended continuing psychological therapy. Again, no assessment of the functional impact of Mr Lozi’s psychological condition was provided.
Other evidence
In the Job Capacity Assessment (JCA) report submitted on 13 August 2015 the assessor noted that Mr Lozi advised that attends psychiatric consultations with Dr Ali every three months and attends “10-15 minute consultations”. (This is not supported by the Medicare report.)
It is noted that Mr Lozi reported that he is easily angered and experiences disturbed sleep, does not perform household duties as these are all taken care of by his wife, visits his mother regularly and occasionally has friends visit him. Mr Lozi also reported that he “sometimes attends the Mosque and he is able to read for 10-15 minutes noting eye sight difficulties restrict his ability to read”.
In a JCA report submitted on 23 February 2016 the assessor noted that Mr Lozi reported that his condition had remained unchanged and that had consulted a psychiatrist for nine sessions. (The Medicare report indicates two consultations with Dr Ali and five consultations with Mr Metry.)
In the decision of the AAT1, the presiding Member has noted that Mr Lozi is able to attend to all his self-care needs without support, has few social contacts or recreational activities, is able to use public transport as necessary, has strained interpersonal family relationships and exhibits considerable anger but has no history of antisocial behaviour. Member Glasson considered that Mr Lozi’s mental health condition had a mild functional impact on activities involving mental health function and assigned a rating of 5 points under Impairment Table 5.
Consideration
Mr Lozi contends that, at the date of claim and during the claim period, he suffered from a permanent mental health condition that had a severe functional impact on activities involving mental health function.
The difficulty for Mr Lozi is that, in my view, the evidence before the Tribunal does not adequately support his contention.
The medical evidence is incomplete and somewhat problematic in that there appears to be inconsistency with the diagnosis, inconsistency with the prescribed medication doses and some uncertainty about his compliance.
The letters provided by Dr Ali can best be described as superficial and unhelpful. Dr Ali provides no rationale for his diagnosis, no assessment as to the severity of symptoms and no assessment of functional impact.
Furthermore, the documentary evidence indicates that Mr Lozi has been treated for more than ten years with the same two medications, quetiapine and fluvoxamine, with modest variations in dose over this time. Dr Ali provides no explanation as to the benefit of this treatment approach in the face of the claimed continuing and increasing severity of symptoms and functional impairment.
The reports dated 3 July 2015 and 6 January 2016 provided by Dr Alsayed, are in my view, relatively superficial and do not satisfactorily address the relevant issues.
In the reports dated 8 August 2016, 21 February 2017 and 16 March 2017, which are all similar, Dr Alsayed attempts to assess Mr Lozi’s functional impairment under Impairment Table 5 and concludes that Mr Lozi has severe difficulties with most of the descriptors listed in that Table, so that an impairment rating of 20 points should be applied.
All these reports have been provided five or more months after the end of the claim period and the relevance to that period is, in my view, uncertain.
Furthermore, as part of his assessment Dr Alsayed has stated that Mr Lozi has severe difficulties with self-care and travel and does not leave home unless accompanied by a family member.
I note that Dr Alsayed assertions are clearly inconsistent with the evidence recorded by the JCA, AAT1 and Mr Lozi’s own evidence at the hearing and, therefore, I have significant concerns about the reliability of Dr Alsayed’s assessment and have placed little weight on these reports.
Notwithstanding the difficulties with the evidence, I am satisfied that there is sufficient evidence to conclude that, during the claim period, Mr Lozi did suffer from a mental health condition, which for present purposes can best be described as “depression” and can be considered to be fully diagnosed for the purposes of the Impairment Determination.
Whether the condition was fully treated and fully stabilised during the claim period is, in my view, less certain.
Mr Lozi has been diagnosed as suffering from “depression” for more than 13 years. During this time, he has been treated with essentially the same medication, that is, quetiapine and fluvoxamine, with only modest variations in dose and infrequent psychiatric assessment. He has attended occasional counselling but there is no evidence of any formal psychological treatment until he was seen by Mr Metry on 8 September 2015 about three months before the date of claim. This treatment has continued until at least 17 January 2017. Mr Lozi has also, only recently, continued regular consultations with Dr Ali.
Therefore, in my view, the evidence suggests that at the date of claim and during the claim period, Mr Lozi’s “depression” was not fully treated and stabilised.
Furthermore, even if I were to accept that that Mr Lozi’s “depression” was permanent for the purposes of the Impairment Determination, and after consideration of the descriptors in Impairment Table 5, I am satisfied that his self-reported symptoms are consistent with a mild functional impact on activities involving mental health function. Therefore, a rating of only 5 points could be applied.
SPINE CONDITION
Medical evidence

In his report of July 2015 Dr Alsayed lists “degenerative disease in L spine” as a medical condition with significant functional impact and notes current treatment as analgesic medication and physiotherapy. He notes that there was an orthopaedic consultation on 8 February 2010 and describes impact on ability to function as “Pain restricting his L spine ROM. Restricted standing (less than 20 minutes), lifting (less than 5kg), walking (less than 20 mins)” but provides no other details.
Dr Alsayed also lists “cervical spine discopathy” as a medical condition that is generally well-managed and that causes minimal impact on ability to function but provides no other details.
In his report of 6 January 2016, Dr Alsayed states that Mr Lozi has a history of “discopathy causing lower back pain radiating to his lower limbs” and that he is receiving remedial therapy and pain management. He states that “imaging has confirmed the pathology of discopathy” but provides no details.
Dr Alsayed states that Mr Lozi was able to sit for a period of 20 minutes before changing his posture, able to stand for up to 10 minutes with pain radiating to his lower limbs, able to walk for up to 15 minutes, able to manage weights up to 2 kg in both hands and not able to lift from floor to waist because of restricted lumbar spine flexion.
In his report of 8 August 2016, Dr Alsayed states that Mr Lozi suffers from neck pain with radiation to the right and left shoulders and constant pain in the lumbar spine area. He states that imaging has confirmed the pathology but again provides no details.
Dr Alsayed states that Mr Lozi is able to sit for 15 minutes without changing posture, able to stand for 15 minutes with pain and able to walk for 10 minutes. He makes an assessment of moderate functional impact on activities of lower limb function with a rating of 10 points under Impairment Table 3.
I note that Impairment Table 4 should be used when assessing impact on activities involving spinal function.
Other Evidence
In the JCA report submitted on 13 August 2015 the assessor noted that Mr Lozi stated that he experienced pain with bending, walking greater than 5-10 minutes and heavy lifting. He also stated that he is independent in all aspects of self-care and is able to drive and use public transport.
The assessor observed that Mr Lozi was able to stand independently from a seated position, walk to the assessment room without any aids or assistance and remain seated for the duration of the 30 minute assessment interview without any obvious signs of pain or discomfort.
In the AAT1 decision, the presiding member noted that Mr Lozi cannot carry anything heavy or walk for very long; is able to reach up to retrieve a book from a shelf at head height; can bend down to pick up something on the floor, and; is able to move his head from side to side when driving.
The presiding member goes on to consider the descriptors in Impairment Table 4 – Spinal Function and notes that Mr Lozi is able to engage in overhead height activities and can bend to knee level. He also noted that Mr Lozi was observed to be able to move his head to look in all directions, able to bend forward to pick up what was on the table in front of him and did not need assistance to get up out of the chair.
Consideration
Mr Lozi contends that, at the date of claim and during the claim period, he suffered from a permanent spine condition that had a moderate functional impact on activities involving spinal function.
The difficulty for Mr Lozi is that, in my view, the evidence before the Tribunal does not adequately support his contention.
Dr Alsayed’s documentary evidence is in my view incomplete and unconvincing.
Dr Alsayed provides no evidence to support the diagnosis and provides no coherent explanation for the claimed severity of Mr Lozi’s functional impairment. He applies the wrong Impairment Table and describes a level of impairment that is not consistent with the other available evidence including Mr Lozi’s self-report of his functional capacity with respect to self-care travel and ability to independently use public transport.
In my view, Dr Alsayed’s evidence is not reliable and I have placed little weight on his reports.
For present purposes, I am satisfied that during the claim period Mr Lozi did suffer from a permanent spine condition, however, I am not persuaded that there is sufficient reliable corroborative evidence to make a reasonable assessment of the functional impact of this condition. Therefore, a rating under Impairment Table 4 cannot be applied.
OTHER MEDICAL CONDITIONS
In his report of 3 July 2015 Dr Alsayed lists “chronic epicondylitis, asthma, GORD (drug induced) osteoarthritis” as medical conditions that are generally well managed and that cause minimal or limited impact but provides no other details.
I his report of 6 January 2016 Dr Alsayed adds hernia, gouty arthritis, subacromial bursitis and cataract as medical conditions suffered by Mr Lozi but provides no other details.
I am satisfied that there is insufficient evidence before the Tribunal to make a reliable assessment with respect to any of these conditions and, therefore, a rating under the Impairment Tables cannot be applied.
DECISION
For reasons set out above the Tribunal is satisfied that, during the claim period, Mr Lozi’s impairment was not 20 points or more under the Impairment Tables so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
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 I Alexander, Member

..............................[sgd]..........................................
Associate
Dated: 6 July 2017

Date(s) of hearing: 20 June 2017

Applicant: In person

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1041

6 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	20 June 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services