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

[2015] AATA 838

Moshe and Secretary, Department of Social Services (Social services second review) [2015] AATA 838 (29 October 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1200
Re	Najeeba Moshe
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	29 October 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – spine, upper limb and mental health conditions – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – 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

Social Security (Requirements and Guidelines– Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

29 October 2015

1. On 23 May 2014 Ms Moshe lodged a claim for Disability Support Pension (“DSP”) on the basis that she suffered medical conditions which were having an impact on her ability to function.

2. Ms Moshe’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, in that she did not have an impairment rating of 20 points or more under the Impairment Tables.

3. In a decision dated 12 February 2015 the Social Security Appeals Tribunal (“SSAT”) found that Ms Moshe had total impairment rating of 10 points under Table 5 and did not satisfy s 94(1)(b) of the Act. In these proceedings Ms Moshe seeks review of the SSAT decision.

4. At the hearing Ms Moshe was self-represented and was assisted by an Arabic interpreter.

   ISSUES

5. In order to qualify for DSP, Ms Moshe 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 23 May 2014  and 22 August 2014  (the claim period).

6. 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

7. The Respondent concedes and the Tribunal accepts that Ms Moshe suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

8. 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)).

9. 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)).

10. 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”.

11. 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)”.

12. For present purposes the relevant medical conditions to be considered by the Tribunal are a mental health condition (chronic depression), a spine condition, an upper limb condition and a lower limb condition.

13. In a Centrelink Medical Report dated 8 November 2012 Dr Atto, GP, lists several symptoms and diagnoses as conditions that are generally well managed and that cause minimal or limited impact  but provides no other relevant information about these conditions.

14. As there is no other relevant evidence before the Tribunal about these conditions I am satisfied that they could not be considered as permanent for the purposes of the Impairment Determination.

15. The Respondent accepts and the Tribunal agrees that during the claim period Ms Moshe’s mental health condition was fully diagnosed but contends that the condition was not fully treated and stabilised so that a rating under Impairment Table 5 cannot be applied.

16. In respect of the other medical conditions (spinal, upper and lower limb conditions) the Respondent accepts that during the claim period these conditions were fully diagnosed but not fully treated or fully stabilised so that a rating under the Impairment Tables cannot be applied.

17. Accordingly, in these proceedings the Tribunal must consider whether during the claim period Ms Moshe’s impairment was 20 points or more under Impairment Tables and, if so, whether she had a continuing inability to work.

    Mental health condition

18. In a letter dated 2 May 2011 Dr Benjamin, consultant psychiatrist, notes that Ms Moshe had a three year history of “persistent, but fluctuating symptoms of anxiety and depression” which started after she lost three members of her family in one year.  She was seen by  a psychiatrist for two years and was prescribed Avanza 30 mg which was “helpful but only to a limited extent’

19. On mental state examination he notes that Ms Moshe was “appropriately dressed and kempt…appeared depressed ….was particularly distressed by her anxiety and panic attacks ….her cognitive functions including attention, concentration, memory and judgement were unremarkable”.

20. Dr Benjamin diagnosed Chronic Major Depressive Disorder and added Efexor 75mg to her treatment.  

21. In a Centrelink Medical Report dated 19 July 2011 Dr Benjamin confirms the diagnosis of chronic major depressive disorder and notes current treatment as “Efexor75 + Avanza 30, Valium 5mg , psychotherapy”

22. He notes impact on ability to function as “poor concentration, lack of motivation social withdrawal” and comments that “her response to psych has been limited and she continues to be symptomatic to a significant extent”.

23. In a letter dated 30 November 2011 Dr Younan, clinical psychologist, states that Ms Moshe was seen on four occasions   and “in my opinion she requires ongoing treatment”.

24. Ms Moshe told the Tribunal that she saw Dr Benjamin on 4 or 5 occasions but stopped seeing him because it was too far to travel to his office and also he did not bulk-bill. She said that she subsequently stopped taking the prescribed medication but was not able to recall when. Also she was unable to recall whether her psychological treatment continued.

25. There is no further correspondence from Dr Benjamin or Dr Younan before the Tribunal.

26. In his report of 8 November 2012 Dr Gatto lists a diagnosis of “anxiety depression with adjustment disorder “ and notes current treatment as Avanza 30 mg  but provides no other relevant information.

27. In Job Capacity Assessment (JCA) report submitted on the 29 November 2012 the assessor concluded that Ms Moshe’s mental health condition was fully treated and fully stabilised and applied a rating of 10 points under Impairment Table 5.

28. In a brief letter to dated 9 November 2013 Mr Metry, psychologist, thanks Dr Abdel-Megeed for referring Ms Moshe and notes that she appears to be “suffering from Major Depressive Disorder”. He goes on to express the opinion that she would benefit from receiving cognitive behavioural therapy (CBT) and would benefit from “continuing to receive the antidepressant medication”.

29. Medicare records indicate that the Ms Moshe was seen by Mr Metry on six occasions between 9 November 2013 and 5 May 2014.

30. In a letter Dated 5 May 2014 Mr Metry notes that following a structured program of 6 psychological therapy sessions in the form of CBT Ms Moshe reported no significant improvement and recommends further CBT therapy and continuing anti-depressant medication.

31. In a Centrelink Medical report dated 20 May 2014 Dr Abdel–Megeed notes that Ms Moshe has been his patient since 23 August 2013. He lists ‘Depression/anxiety disorder” as a condition with most functional impact, makes no reference to past or current treatment and indicates that compliance with recommended treatment is uncertain. He describes impact on ability to function as “cognitive function and communication will be considerably affected” but provides no other details.

32. In a Centrelink Medical certificate dated 20 May 2014,  three days before the date claim  Dr Abdel-Megeed notes  a diagnosis of “”exacerbation of chronic depression”  with current treatment as Effexor 75mg, Axit 30mg and Valium 5mg and estimates that the symptoms  will effect Ms Moshe’s capacity to work or study for 3 to 12 months.

33. Relevantly, I note an attachment to a letter from Medicare dated 8 May 2015 which provides  a list of pharmaceutical items that have been recorded on the PBS database for Ms Najeeba Moshe during the period 1June 2012 to 6 May 2015. During that period there were no anti-depressant medications listed until 13 May 2014.

34. The list included two prescriptions written by Dr Abdel-Megeed both dated 13 May 2014 but not supplied until 6 July 2014.The prescriptions were for Venlafaxine (Effexor), 28 tablets with 2 repeats and Mirtazapine (Avanza), 30 tablets with 2 repeats.

35. In a JCA report submitted on the 20 June 2014 the assessor recommends a rating of 10 points under Impairment Table 5 for Ms Moshe’s mental health condition. 

36. In a Centrelink Medical certificate dated 19 September 2014, one month after the end of the claim period,  Dr Abdel–Megeed  notes  a diagnosis of “”exacerbation of chronic depression”  with current treatment as Effexor 75 mg and Axit 30mg.

37. In letters dated 9 March 2015, 4 July 2015 and 17 August 2016[sic] Mr Metry lists Ms Moshe’s continuing symptoms and notes that she continues to receive CBT therapy. 

38. In a letter dated 19 August 2015 Dr Abdel-Megeed confirms that Ms Moshe suffers a chronic mental health condition but does not provide any new information, in particular he does not indicate whether Ms Moshe is compliant with her anti-depressant medication.

    Consideration

39. On consideration of the evidence before the Tribunal I am satisfied that Ms Moshe has suffered chronic depression for several years.

40. However, what is not so clear is whether during the claim period her condition was fully treated and fully stabilised.

41. At the hearing Ms Moshe was not able to provide the Tribunal with a reasonable account of her treatment or impairment at the relevant time and in response to questions often said she could not remember.

42. The evidence before the Tribunal suggests that Ms Moshe ceased psychological and pharmacological treatment for her depression sometime in 2012.

43. In November 2013 her new GP, Dr Abdel-Megeed refers her to Mr Metry for psychological treatment. Mr Metry recommends CBT and antidepressant medication.

44. On the 5 May 2014 Mr Metry notes that 6 the CBT sessions have been completed with no significant improvement as reported by Ms Moshe. He appears to assume that she has been on continuing antidepressant medication, an assumption which is not supported by the evidence.

45. In his medical certificate dated 20 May 2014, Dr Abdel-Megeed refers to an “exacerbation of chronic depression” and prescribes antidepressant medication which suggests that there may have been an increase in Ms Moshe’s symptoms at that time. It is not clear why the prescription was not filled for almost two months.

46. The documentary evidence in respect of Ms Moshe’s treatment since November 2013 can best be described as incomplete and somewhat confusing and tends to support a conclusion that during the claim period her mental health condition was not fully treated and fully stabilised.

47. However, I note that Ms Moshe’s condition has been present for several years and I accept, as noted in the Introduction to Impairment Table 5 that “the signs and symptoms of mental health impairment may vary over time” and that for “mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied”.

48. The corroborative medical evidence with respect to the functional impact on Ms Moshe’s activities involving mental health function during the claim period is somewhat limited and at best suggests a moderate impairment which would warrant a rating of 10 points under Impairment Table 5. This is consistent with two JCA reports and the findings of the SSAT and I agree with those findings.

    Lower limb and upper limb conditions

49. Ms Moshe told the Tribunal that she suffers pain in her right leg particularly the right knee. The pain is made worse by walking and restricts her walking tolerance to 5 to 10 minutes. She attributes the pain to “rheumatism”. She gave no evidence in respect of her upper limb condition.

50. The report of a bone scan performed on 10 June 2011 notes arthritic changes in both AC joints, right glenohumeral joint, both knees, the right foot as well as  “features compatible with the presence of right side plantar fasciitis”.

51. In an undated Centrelink Medical report submitted on 21 July 2011 Dr Sanki, surgeon,   notes a diagnosis of “osteoarthritis knee JOINT” with clinical features of right knee pain and current treatment as “Mobic, physio”. He provides no details in respect of the functional impact of this condition and makes no reference to any upper limb condition. 

52. In a Centrelink medical certificate dated 30 August 2012 Dr Atto notes a diagnosis of “R shoulder & R knee arthritis L plantar fasciitis and treatment as “insoles with arch supports & orthoheels”.

53. In his report of 8 November 2012 Dr Atto lists  a diagnosis of “R shoulder R knee arthritis, L plantar fasciitis, lumbar disc disease, cervical spondylosis”  and describes clinical features as “generalised body pain with neck, shoulders, knees, lower back pain, worse with exertion, walking, movements, going up and down stairs” but provides no other meaningful details.

54. In his report of 20 May 2014 Dr Abdel–Megeed makes no reference to a lower limb or upper limb condition.

55. In a letter dated 10 November 2014 Mr Ha, physiotherapist, notes that Ms Moshe was referred for neck and right shoulder pain. On examination he notes reduced range of movement of the cervical spine due to pain and stiffness. He also notes right shoulder flexion of 90 degrees and a positive right shoulder impingement test.

56. Treatment included “ultrasound, heat, massage, stretching and exercise” with a apparent positive benefit. Mr Ha suggests further treatment would be beneficial but provides no assessment of residual functional impact.

57. Medicare records show that Ms Moshe was seen by Mr Ha on four occasions between 29 September 2014 and 21 October 2014.

58. In his letter of 19 August 2015 Dr Abdel–Megeed lists “tendonopathy right shoulder” as a diagnosis but provides no additional clinical or other details.

    Consideration

59. The medical evidence in respect of the claimed upper and lower limb  conditions can best be described as incomplete and of limited assistance to the issues before the Tribunal

60. The diagnoses by Drs Sanki and Atto appear to be based on the reported findings of the bone scan performed on 10 June 2011 with no explanation as to the clinical relevance of these findings.

61. Dr Atto refers to “L plantar fasciitis” which is clearly not consistent with the bone scan report.

62. Furthermore, there is no additional medical evidence with respect of these conditions apart from the letter written by Mr Ha in November 2014. Mr Ha implies that Ms Moshe’s symptoms were of recent onset but does not provide a detailed history or a definitive diagnosis and, in my view, does not adequately address the relevant issues before the Tribunal.

63. On consideration of the evidence before the Tribunal, I am not persuaded that during the claim period the upper and lower limb conditions were fully diagnosed, fully treated and fully stabilised therefore a rating under the Impairment Tables cannot be applied.

    Spine condition

64. Ms Moshe told the Tribunal that she suffers low back pain when walking. She agreed, however, that her knee pain is worse and contributes more to her reduced walking tolerance.

65. The report of a CT scan of the lumbosacral spine performed on 10 June 2011 describes multilevel “spondylotic change” and the report of the bone scan performed on the same day notes arthritic change in the vertebral column.

66. In his undated report Dr Sanki refers to the CT scan findings and notes current symptoms as “Unable to look after family of four people. Can’t walk for the long distance”[sic] and current treatment as “ANALGESIC, Therapy, Physiotherapy”  but provides no details with respect to functional impact.

67. In his medical certificate of 30 August 2012 Dr Atto makes no reference to the lumbar spine condition.

68. In his report of 8 November 2012 as noted above Dr Atto refers to a diagnosis of “lumbar disc disease, cervical spondylosis”. He does not explain the basis for his diagnosis of “cervical spondylosis” and apart from a reference to pain he does not provide any other details with reference to functional impact

69. In his report of 20 May 2014 Dr Abdel–Megeed makes no reference to a spine condition.

70. As noted above, in his letter of 10 November 2014 Mr Ha does not provide a history or diagnosis to explain Ms Moshe’s neck “pain and stiffness” but does record an improvement with treatment. He also notes that Ms Moshe reported suffering a fall on the 30 October 2014 which caused lower back pain and that his treatment had improved her pain.

71. In his letter of 19 August 2015 Dr Abdel–Megeed lists “chronic lower back pain” as a diagnosis and refers to the CT and bone scan performed in June 2011 but does not provide any additional relevant clinical details.

    Consideration

72. On the basis of the reported findings of the MRI scan performed in June 2011 I accept that during the claim period Ms Moshe’s lumbosacral spine condition was fully diagnosed.

73. However, the limited medical evidence does not, in my view, provide a satisfactory explanation as to the clinical relevance of the MRI findings, and does not provide adequate details in respect of treatment or the impact of this condition on Ms Moshe’s activities involving spinal function.

74. The relevance to the claim period of Ms Moshe’s neck symptoms as treated by Mr Ha in late 2014 is, in my view, unclear and cannot be considered for the purposes of the Impairment Determination.

75. On consideration of the evidence before the Tribunal, I am not persuaded that during the claim period the lumbosacral spine condition was fully treated and fully stabilised and therefore a rating under the Impairment Tables cannot be applied.

    DECISION

76. For reasons set out above I am satisfied that during the claim period Ms Moshe’s impairment was not 20 points or more under the Impairment Tables so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

77. The decision under review is affirmed.

I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 29 October 2015

Date(s) of hearing	13 October 2015
Applicant	In person
Solicitors for the Respondent	Ms B Salaji, Department of Human Services