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

[2020] AATA 692

McKeough and Secretary, Department of Social Services (Social services second review) [2020] AATA 692 (12 March 2020)

Division:GENERAL DIVISION

File Number(s):      2019/1845

Re:Rebecca McKeough

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:12 March 2020

Date of written reasons:        1 April 2020

Place:Sydney

The Tribunal affirms the decision under review.

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

Mr Rob Reitano, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – neck and shoulder pain – lower back pain – chronic pain syndrome – depression and anxiety – whether conditions fully diagnosed, treated and stabilised – whether applicant has a continuing inability to work – whether applicant participated in a Program of Support – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration Act) 1999 (Cth) sch 2 pt 2 cl 2

CASES

Ubergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642

SECONDARY MATERIALS

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2014 (Cth) cl 7

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

REASONS FOR DECISION

Mr Rob Reitano, Member

1 April 2020

INTRODUCTION

1. One difficulty that people who apply for disability support pensions often have is in understanding the complex criteria, found in section 94 of the Social Security Act 1991 (Cth) (‘Act’) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘Tables’), that must be met in order for their claim to succeed. Another difficulty that often arises is in understanding the rules that apply to decision makers in deciding such claims which requires them to be satisfied on proper evidence that those people in fact meet the criteria in the Act and in the Tables.

2. Rebecca McKeough has asked the Tribunal to review a decision that was made in the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) on 20 February 2019 which rejected her claim for disability support pension. Ms McKeough made her claim for disability support pension on 29 November 2017 which means she needed to satisfy the legislative criteria in section 94 of the Act and in the Tables at some stage during the qualification period, which began on the date of her claim and ended 13 weeks later on 28 February 2018.[1]

   1 see Schedule 2, Part 2, Clause 4 of the Social Security (Administration Act) 1999 (Cth).

3. The Tribunal is required to decide Ms McKeough’s claim based on the evidence before the Tribunal at the time of the hearing, albeit it must be evidence that is directed to her condition or conditions in the period 29 November 2017 to 28 February 2018. The Tribunal is required to decide the matter without regard to the decision of AAT1 and without regard to the decision of the authorised officer review officer of the Department on 5 September 2018.

4. I have, however, come to the same decision as AAT1, and of the Secretary’s delegate before that, that the claim must be rejected. It follows, that the decision of AAT1 should be affirmed. I set out my reasons for that decision below.

   BACKGROUND

5. On 29 November 2017 Ms McKeough made a claim for disability support pension. The basis upon which she made her claim related to her chronic lower back pain, her chronic neck and right shoulder pain, and her anxiety and depression.[2]

   [2] Exhibit 1, 176.

6. On 7 February 2018 Ms McKeough underwent a job capacity assessment with two assessors who were a registered nurse and a registered occupational therapist. They reviewed all the medical evidence that was made available to them. They also spoke to Ms McKeough about things that were relevant to her claim. They recorded much of what they read and were told in a document.[3] The document also set out in some detail their reasons for their recommendations.

   [3] Ibid, 197 to 205.

7. The assessors found after reviewing the medical evidence that Ms McKeough’s chronic pain condition was verified by medical evidence and was ‘Fully Diagnosed; Fully Treated; Fully Stabilised’.[4] Those phrases reflect important aspects of the legislative prescription in the Tables that must be satisfied as part of the qualifications for receiving disability support pension. The assessors explained in more than a little detail their reasons for that conclusion, referring to the findings and reasons of several of Ms McKeough’s treating medical practitioners which included her general practitioner Dr Gowrie Pavan. The reasoning referred to the likelihood, or rather the lack of it, that further treatment would see significant functional improvement in the next two years.[5]

   [4] Ibid, 198.

   [5] Ibid, 199.

8. So far as Ms McKeough’s depression and anxiety condition was concerned, the assessors found that Dr Pavan was not appropriately qualified to diagnose Ms McKeough mental health condition, as Table 5 of the Tables stipulates that she needed to be. For the diagnosis to be considered it must have been undertaken 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)’.[6] The assessors saw themselves as proscribed from entering into the domain of Ms McKeough mental health condition in the absence of evidence from a qualified medical practitioner.[7]

   [6] Table 5 of the Tables.

   [7] Exhibit 1, 199.

9. In the case of Ms McKeough’s chronic pain condition the assessors referred to things Ms McKeough told them she could and could not do. She told them, for example, she was able to type, wash, launder, dress, prepare meals, do light cleaning, drive a car, do infrequent light grocery shopping and so on. She told the assessors that she paced her activities and took additional time to complete them. They assessed Ms McKeough’s stated ability to perform specific tasks against the descriptors in the impairment tables.

10. The assessors considered that the functional impact of Ms McKeough’s chronic pain condition on activities using hands or arms as mild and attributed to it an impairment rating of 5 points from Table 2 (Upper Limb Function). They considered her chronic pain condition to have a moderate functional impact on activities involving spinal function, and 1attributed to it 10 points from Table 4 (Spinal Function).[8] The conclusions arrived at in both cases considered not only Ms McKeough’s self-reported incapacity, but evaluated it against the backdrop of the medical evidence from Dr Pavan (general practitioner), Dr Ball (neurosurgeon) and Dr Holford (pain medicine specialist).[9] The assessors did not simply assert a conclusion that left the reader wondering how they arrived at it or without having some foundation for arriving at their conclusion, but gave reasons for why they arrived at their conclusions.

    [8] Exhibit 1, 200 -201.

    [9] Supra.

11. Ms McKeough provided some additional medical evidence to the Tribunal which included a letter from Dr Raiz Ismail, a consultant psychiatrist, dated 29 November 2019 that had a caution on the front page in bold type ‘Please note that this is a clinical letter and NOT a medicolegal letter and intended for the GP regarding diagnostic and management issues. Therefore, the letter should not be released without the authors permission’.[10] The letter contains no diagnosis, recording only Dr Ismail’s provisional impression as ‘Mixed anxiety with depression’. Apart from that the letter simply reports on what Ms McKeough told Dr Ismail about her history. The letter prescribes Duloxetine and says that Ms McKeough’s general practitioner should refer her to a psychologist.

    [10] Exhibit 3, Appendix 1.

12. Ms McKeough also provided to the Tribunal two letters from Dr Pavan dated 5 February 2020 and 12 February 2020.[11] The first letter refers to Dr Ismail’s ‘diagnosis of depression’. I do not see anything in Dr Ismail’s letter that could be considered to be a diagnosis. The second letter ‘picks up’ each of the functional impacts set out in Table 5 of the Tables and comments on them so far as Ms McKeough is concerned.

    [11] Exhibit 3, Appendices 2 and 3.

13. I should add that there is a great deal of other medical evidence that was before the Tribunal which I have not referred to here, largely because it does not assist in the resolution of what are the important issues that need to be determined in order for Ms McKeough to succeed in obtaining a disability support pension.

    THE RELEVANT CRITEREA

14. Section 94(1) of the Act sets out, amongst other criteria, three criteria that Ms McKeough must satisfy during the relevant period for her to qualify for disability support pension: she must have a physical, intellectual or psychiatric impairment; second, the impairment must score 20 or more points under the Table; third, she must have a continuing inability to work. In turn the requirement to have a ‘continuing inability to work’ is governed by the statutory criteria found in subsection 94(2) of which more later.

    A PHYSICAL, INTELLECTUAL OR MENTAL IMPAIRMENT

15. The Secretary conceded, and I am satisfied, that Ms McKeough had during the relevant period a physical, intellectual or psychiatric impairment. It is not necessary to address the first pre-condition any further or to even assess any of the medical evidence supporting fulfilment of this aspect of the criteria. I find, based on the job capacity assessment and the material referred to in that assessment, that Ms McKeough had a physical, intellectual or psychiatric impairment at the time she made her claim for disability support pension.

    20 OR MORE POINTS ON THE TABLES?

16. Subclause 6(3) of the Tables requires that the relevant condition causing the impairments must be ‘permanent’ and more likely than not on the available evidence to be one that will persist for more than 2 years. If it is not such a condition, then no impairment rating can be afforded to it.

17. Subsections 6(4) to 6(7) prescriptively define what is meant by ‘permanent’. In a shorthand way this is described by the condition being ‘fully diagnosed by an appropriately qualified medical practitioner, full treated and fully stabilised’ (emphasis added)[12]. These phrases in turn have prescribed definitions under the Table which I will refer to below

    [12] The Tables cl 6(4)(a).

18. It is necessary to consider each of Ms McKeough’s conditions, that is her chronic pain syndrome and her depression and anxiety, separately.

19. The Secretary accepts that Ms McKeough’s chronic pain condition was fully diagnosed, treated and stabilised when she made her claim. It is not necessary to say more about the operation of those criteria given the Secretary’s properly made concession. Based on the job capacity assessment, I find that Ms McKeough’s chronic pain condition was fully diagnosed, fully treated and fully stabilised.[13]

    [13] Exhibit 1, 198-199.

20. The functional impairment caused by the chronic pain condition to Ms McKeough’s upper limbs was supported by Dr Pavan in her report of 18 January 2018 in so far as it concerned picking up heavy objects and numbness of her dominant arm,[14] by Dr Ball so far as it concerned reaching out to pick up objects[15], and by Dr Harrison who recorded that Ms McKeough experiences right upper limb discomfort when trying to lift or carry heavy items.[16] It is not to the point that the doctors did not say that Ms McKeough could or could not do various things because to a large extent that would depend upon Ms McKeough’s self-reporting. What is important is that the underlying ‘condition’ or symptoms that each of them identified could support or verify, or in the words of Table 2 ‘corroborate’, what Ms McKeough reported about her functional impairment.

    [14] Ibid, 194

    [15] Ibid, 116.

    [16] Ibid, 122

21. The matters that the medical practitioners reported upon, especially so far as numbness in her dominant arm is concerned, would support a conclusion that Ms McKeough would have difficulty in doing most of things the things referred to in Table 2 under the description ‘moderate functional impact’. The fact that she told AAT1 that she had difficulty with most of those things at the time she made her application is corroborated by those medical practitioners’ opinions. 

22. I find that Ms McKeough should have been assigned 10 points under Table 2 of the Tables in relation to her upper limb functions.

23. In relation to the functional impact of Ms McKeough’s chronic pain condition on her spine, the evidence is more straight forward. At the time she made the application for disability support pension, Ms McKeough indicated that she was able to perform all of the activities of daily living albeit with some modification.[17] She said she was able to drive a car, do grocery shopping, and ordinary household activities such as cooking, cleaning and laundry.[18] There is no evidence that, at the time Ms McKeough made her claim for a disability support pension, she was unable to do any of the things described under the heading ‘severe functional impact on activities’ in Table 4; such as, perform any overhead activities, turn her head or bend her neck without turning her trunk, bend forward to pick up objects from a table or remain seated for more than ten minutes.[19] The things Ms McKeough told the assessors who did the job capacity assessment in February 2018 were completely inconsistent with those kinds of functional impairments, as were the things that the medical practitioners referred to.

    [17] Ibid, 201

    [18] supra

    [19] Ibid, 50

24. Ms McKeough tried in the hearing to suggest that she did have a severe impairment because she could not sit for more than ten minutes at a time. There is nothing in the contemporaneous records (medical and other records) brought into existence at the time she made her claim that would support that claim. The medical practitioners did not say so much and nothing in their reports prepared at the time would support such a conclusion. The assessors did not record anything even remotely like that in their job capacity assessment. It is difficult to accept if that were the case at that time that no one, least of all Ms McKeough herself, was mentioning it. Self-reporting alone is, of course, eschewed by the Tables as a means of measuring functional impairment.

25. Ms McKeough also suggested that she could have one of the medical practitioner’s ‘change’ her report ‘now that she understands the consequences for me of this’.[20] Although the less said about that suggestion the better, I simply observe that such a course would, amongst all the other difficulties it would create, simply cast considerable doubt on the reliability of that evidence because it would be markedly different from everything that Ms McKeough said at the time to the assessors undertaking the job capacity assessment, and to the medical evidence both at the time of the application for the disability support pension and later. Such evidence would therefore be completely unpersuasive about the functional impact to Ms McKeough’s spine.

    [20] Transcript 26.1- 5

26. I find that Ms McKeough should have been assigned 10 points under Table 4 of the Tables in relation to her spinal functions.

27. Turning then to Ms McKeough’s depression and anxiety. There is no evidence that at the date of her claim for a disability support pension or until 28 February 2018 that Ms McKeough was diagnosed as having any mental health condition. The Table is very clear in requiring a diagnosis by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Dr Pavan was not an appropriately qualified practitioner as she was neither a psychiatrist nor a clinical psychologist. Dr Ismail was a consultant psychiatrist but her report, putting aside the other problems I have observed earlier about it, contains no diagnosis at all let alone any diagnosis of Ms McKeough’s depression and anxiety condition during the qualification period. Dr Ismail reflects in her report her ‘impression’ and I do not consider that to be, especially in the context of the document, a diagnosis. For completeness it is clear from Dr Ismail’s letter that the Plan she was suggesting was only the start of things to come and would not permit a finding, even if there was a diagnosis, that Ms McKeough’s mental condition was ‘fully treated’. There is also nothing that would enable the Tribunal to find that the condition was ‘fully stabilised’.

    A CONTINUING INABILITY TO WORK?

28. I have found that Ms McKeough had a total impairment rating of 20 points, but that she did not have a ‘severe impairment’; which is defined under subsection 94(3B) of the Act as an impairment that attracts 20 or more points under a single Impairment Table. In those circumstances Ms McKeough is required by paragraph 94(2)(aa) of the Act to have actively participated in a program of support for 18 months in the three years prior to making a claim for a disability support pension.[21] The evidence is that in the three years before her claim Ms McKeough had only completed 341 days out of the required 546 days in such a program.[22] Having not met the number of days of required Ms McKeough is not able to satisfy the requirement of having a continuing inability to work as those words are defined in subsection 94(2) of the Act. Her claim therefore must fail.

    [21]See cl.7(2) Social Security (Active Participation for Disability Support Pension) Determination 2014(Cth).

    [22] Exhibit 1, 304.

29. There are other criteria in subsections 94(2)(a) and 94(2)(b) that Ms McKeough does not satisfy; they are that the impairment is of itself sufficient to prevent her working independently of a program if support within the two years following her claim and that she was unable to undertake training activity during those two years such as would have enabled her to work. The word ‘work’ is defined in subsection 94(5) as work for at least 15 hours a week at or above the minimum wage.

30. The job capacity assessment assessed Ms McKeough’s ability to work within the two years after assessment as being for 15 to 22 hours per week doing light semi-skilled work.[23] The assessors gave reasons for their opinion that were persuasive, especially so far as they referred to Ms McKeough’s motivation to re-engage in the work force and her exploration of options working in the local library for a publisher at home.[24] The opinion of the assessors especially when one of them is a registered occupational therapist is significant, given the specialist knowledge and experience such people bring to these issues.[25] It carries all the more weight when clear explanation and reasons are given for that opinion as is the case here.

    [23] Exhibit 1, 202.

    [24] Ibid, 203.

    [25] Ubergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642 at [28]–29].

31. I find that Ms McKeough did not at the time of her application or by 28 February 2018 have a continuing inability to work.

    CONCLUSION

32. The Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 1 April 2020

Date of hearing:	12 March 2020
Advocate for the Applicant:	Mr T De Souza (by telephone)
Solicitors for the Respondent:	Ms C Campbell, Services Australia