MY NHI NGUYEN and Secretary, Department of Social Services

[2015] AATA 407

[2015] AATA 407

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/6715
Re	MY NHI NGUYEN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	10 June 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

10 June 2015

BACKGROUND

1. On 28 May 2014 Ms Nguyen 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. The conditions involved the cervical spine, the lumbar spine, both shoulders, the left elbow and both feet.

2. Ms Nguyen’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular, s 94(1)(b) of the Act in that her impairment rating under the Impairment Tables was not 20 points or more.

3. In this proceeding Ms Nguyen seeks review of the SSAT decision of 10 December 2014.

4. At the hearing Ms Nguyen was self-represented. She was assisted by an interpreter in the Vietnamese language.

   ISSUES

5. In order to qualify for DSP Ms Nguyen had to 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 28 May 2014 and 27 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 20 points or more under the Impairment Tables; and

   (c)one of the following applies;

   (i)the person has a continuing inability to work;

7. It is agreed that Ms Nguyen suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act.

8. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 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 the condition 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)).

10. Also, the Introduction to each Impairment Table stipulates that self-report of symptoms alone is insufficient and that there “must be corroborating evidence of the person’s impairment”.

11. The Respondent accepts that Ms Nguyen suffers a degenerative spinal condition affecting both her cervical spine and her lumbo-sacral spine and that the condition is permanent for the purposes of the Determination.

12. The Respondent contends, however, that during the claim period the condition had a mild functional impact on Ms Nguyen’s activities involving spinal function and that a rating of five points under Table 4 can be assigned.

13. The Respondent accepts that the right and left shoulder conditions are both fully diagnosed but contends that during the claim period these conditions were not fully treated and fully stabilised and therefore a rating under the Impairment Tables could not be assigned.

14. In respect of the left elbow condition the Respondent contends that there is insufficient medical evidence to allow the assignment of a rating under the Impairment Tables.

15. In respect of the foot conditions the Respondent accepts that for present purposes the conditions are permanent but contends that there is insufficient medical evidence to support a rating under Table 2 of five points or more.

16. It follows that the definitive issues in this are matter whether during the claim period Ms Nguyen’s impairments rated 20 points or more under the Impairment Tables and if so whether she had a continuing inability to work.

    MS NGUYEN’S EVIDENCE

17. Ms Nguyen told the Tribunal that she suffers constant pain and tiredness because of her various medical conditions and is unable to perform most household duties apart from some assistance with food preparation and occasional shopping. Apparently her eldest daughter, who is an accountant with a major bank, does most of the cooking, cleaning and washing with some assistance from a younger sister. The family of five live in a two storey five bedroom house.

18. Ms Nguyen stated that she required no assistance with her daily personal care, is able to drive a car for up to 25 minutes and is able to go shopping with her two younger children and when necessary drive them to school. Ms Nguyen said that she is able to sit for up to 25 minutes before getting lower back pain and has to stand up and stretch and also has difficulty turning her head side to side.

19. Ms Nguyen stated that she is able to walk slowly for about 25 minutes without any walking aids.

20. In respect of her upper limbs Ms Nguyen told the Tribunal that she currently has pain in both shoulders, the right being worse than the left, and that she has restricted movement in both arms. She explained that initially her left shoulder was worse but after being told to rest the left arm she preferred to use her right arm which led to an increased pain in her right shoulder.

21. As treatment for her pain Ms Nguyen relies on Mobic twice a day and Panadeine Forte at night and apparently this provides some relief. She has declined treatment with steroid injections to the shoulders and spine and said that she was unable to afford the surgery recommended for her foot condition.

22. Ms Nguyen told the SSAT that:

    “She cannot bend at all, though she can touch her knees because she has long arms. She can do no housework because of her pain and restriction and her children must do it all for her. She can do light food preparation only. She can do nothing above her head, cannot lift or carry anything, and can only turn her head to a very limited extent… the her doctors told her to be very careful and not do anything to strain herself”.

23. In relation to the problems with her feet Ms Nguyen told the SSAT that the “the bunions on both feet cause a lot of pain and restrict her walking to up to 25 minutes” but that “she can stand for between 20 – 25 minutes” and “walk slowly around the supermarket and sometimes needs to rest”. She also told the SSAT that she had been told that she would need surgery in the future but that this was not recommended at present.

    MEDICAL EVIDENCE

24. Ms Nguyen relies on two Centrelink medical reports provided by her GP, Dr Qamar, dated 20 May 2014 and 19 July 2014, a letter provided by Dr Rozario, Rheumatologist, dated 16 July 2014 and reports of various radiological studies performed between September 2011 and November 2014.

25. In Dr Qamar’s first report of 20 May 2014 he notes that Ms Nguyen had degenerative changes in the lumbar spine and describes the impact on her ability to function as “partially restricted movements, unable to lift heavy wts [weights], prolonged sitting & sitting on floor restricted”.

26. Dr Qamar notes that Ms Nguyen has cervical disc lesions and describes the impact this has on her ability to function as “c/- difficulty with neck movements and abduction both shoulders. Epicondylitis (L) elbow unable to lift heavy wts [weights]”.

27. Dr Qamar also notes “bunions of both feet, corns, calasus/feet epicondylitis hallus valgus deformity” as medical conditions that are generally well managed and cause limited or minimal impact on Ms Nguyen’s ability to function.

28. In his supplementary report of 19 July 2014 Dr Qamar makes a diagnosis of “painful both shoulders Rt [right] worse”, refers to “supra and spinatus tendenosis subacromial bursitis”[sic] and describes the impact on Ms Nguyen’s ability to function as “unable to lift heavy objects”.

29. In respect of Ms Nguyen’s spinal conditions Dr Qamar describes the impact on her ability to function as “unable to lift heavy objects and repetitive movements”.

30. In respect of Ms Nguyen foot conditions Dr Qamar notes that the bunions, calluses and the right heel spur cause painful feet and difficulty walking and that for the bunions surgical excision is the only option.

31. Dr Rozario, in a letter dated 16 July 2014, notes that Ms Nguyen had problems with her left shoulder which “she feels has now improved”.

32. In response to a question from the Tribunal Ms Nguyen denied having told Dr Rozario that her left shoulder had improved and suggested that the doctor had misunderstood what was said.

33. Dr Rozario noted that a recently performed MRI scan of the right shoulder revealed “moderate right AC joint degeneration with osteophytes and a joint effusion” together with “supra and infraspinatus tendinitis and subacromial bursitis”. She discussed with Ms Nguyen the need for surgery and indicated that steroid injections should be considered.

34. Dr Rozario noted that Ms Nguyen was not keen on steroid injections and was very apprehensive about surgery.

35. Apart from noting that Ms Nguyen feels that she is unable do her housework and that her daughter does most of it, Dr Rozario provided no evidence of physical examination and no clinical assessment of functional impact caused by Ms Nguyen’s shoulder conditions.

36. Dr Rozario made a brief reference to abnormalities reported in the most recent MRI of Ms Nguyen’s lumbar spine but made no comment as to relevance of these abnormalities with respect to either treatment or functional impact.

37. The relevant radiological studies include the following:

    ·CT of the cervical spine dated 16 September 2011 – “straightening and reversal of the normal cervical lordosis Mild degenerative and spondylotic changes. No evidence of neural impingement or canal stenosis”;

    ·X Ray of both feet dated 3 July 2012 – “Bilateral hallux valgus deformities are noted in the first MTP joint with associated bunion formation”;

    ·Ultrasound of the left elbow dated 9 May 2013 – “mild intrasubstance heterogeneity of the common extensor origin in keeping with mild lateral epicondylitis”;

    ·MRI of the cervical spine dated 25 September 2013 – “loss of normal cervical lordosis. At C4/5 level there is minimal left paracentral bulging of the disc annulus without neural compromise. At C5/6 level there is a small left posterolateral disc protrusion encroaching on the theca, but without neural compromise” but otherwise no abnormality;

    ·MRI of the left shoulder dated 25 September 2013 – “There is a type 1 acromion. Minor enthesiophyte formation is present on the inferior surface of the acromion with minor subacromial impingement. There is minimal associated subacromial bursitis” but otherwise normal;

    ·MRI scan of the lumbar spine dated 27 September 2013 – there are multilevel degenerative changes with abutment of the “traversing L2 nerve roots” and the “traversing right S1 nerve root”;

    ·X Ray of the right foot dated 1 May 2014 “there is moderate hallux valgus deformity of the right great toe” and “small plantar calcaneal spur” abnormalities.

    CONSIDERATION

38. It is clear from Ms Nguyen’s oral evidence that she believes she suffers significant impairment because of her diagnosed medical conditions.

39. The difficulty with her self- reported evidence, however, is that the claimed impairment caused by each of her conditions is poorly defined with significant overlap with respect to her symptoms, particularly pain. She tended to focus on the radiological diagnoses and appeared to construct her impairment to fit the descriptors in the Impairment Tables.

40. The medical evidence before Tribunal which, in my view, is somewhat incomplete and inconsistent, is also not entirely consistent with Ms Nguyen’s claims with regard to the severity of her impairments.

    Spinal Conditions- Lumbar and Cervical

41. In respect of the cervical spine condition, the reported abnormalities reflected in the MRI scan performed on 25 September 2013 do not explain the claimed difficulty with neck movement.

42. There is no satisfactory clinical assessment of this condition by either Dr Qamar or Dr Rosario. The relevance of the persistent finding of a “reversal of the normal cervical lordosis” to Ms Nguyen’s symptoms has not been considered, which suggests that the cervical spine condition has not been fully diagnosed, treated and stabilised.

43. The MRI scan of the lumbar spine performed on 27 September 2013 clearly demonstrates significant abnormalities. It is well accepted that radiological abnormalities of the spine do not necessarily correlate with impairment and that clinical assessment is necessary.

44. The reports of Dr Qamar and Dr Rozario do not provide a satisfactory clinical assessment of functional impact caused by Ms Nguyen’s lumbar spine condition.

45. Nevertheless, on consideration of all the evidence and the descriptors in Impairment Table 4 I am satisfied that the spinal conditions do have some functional impact. Ms Nguyen’s self-report suggests an impairment rating of 10 points but as there is insufficient corroborating evidence I find that the impairment rating is limited to five points.

    Left Elbow Condition

46. The ultrasound of the left elbow performed on 9 May 2013 was consistent with a diagnosis of mild lateral epicondylitis at that time. As there is insufficient evidence before the Tribunal in respect of the progress of this condition or any reasonable assessment as to the effect of any treatment or clinical assessment of functional impact, I am satisfied that a rating under the Impairment Tables cannot be assigned for this condition.

    Foot Conditions

47. In respect of Ms Nguyen’s foot conditions I am satisfied that during the claim period these conditions were permanent and that she does suffer some functional impairment as result of these conditions. The degree of functional impact on Ms Nguyen’s activities requiring use of the lower limbs is not entirely clear but on consideration of her self-reported evidence and the descriptors in Impairment Table 3 I am satisfied that the impairment rating was no greater than five points.

    Shoulder Conditions (Left and Right)

48. Ms Nguyen claims she suffers constant pain and restricted movement in both her shoulders.

49. The MRI scan of the left shoulder performed on 25 September 2013 revealed a type 1 acromium with minor subacromial impingement and minimal subacromial bursitis.

50. In Dr Qamar’s initial report there is no mention of this condition and the supplementary report provides no assistance in determining the progress of this condition especially in terms of a response to any treatment or the degree of any functional impact.

51. In Dr Rozario’s letter of 16 July 2014 she notes that Ms Nguyen reported that the problems in her left shoulder had improved but provides no other relevant information about this condition. Notwithstanding Ms Nguyen’s denial during her oral evidence I am satisfied that as Dr Rozario made only a passing reference to the problems with the left shoulder, she accepted that the condition had improved and did not require further consideration.

52. I conclude that there is insufficient evidence before the Tribunal to determine whether during the claim period Ms Nguyen’s left shoulder condition was fully treated and fully stabilised and, therefore, a rating under the Impairment Tables could not be assigned.

53. The MRI scan of the right shoulder performed on 5 May 2014 revealed early supraspinatus and infraspainatus tendonitis and subacromial bursitis without tendon tear.

54. Dr Qamar’s supplementary report refers to painful shoulders with the right being worse but provides no assistance in determining whether during the claim period the condition concerning the right shoulder was fully treated or fully stabilised.

55. In her letter of 16 July 2014 Dr Rosario refers to the results of the MRI scan and suggests treatment with steroid injections and “a need for surgery” but provides no findings on physical examination, no clinical assessment as to functional impact and no rationale for early surgical intervention.

56. Ms Nguyen told the Tribunal that she chose not to have steroid injections because she was told that pain relief would only last for about three months and that she preferred to continue her treatment with Mobic twice a day and Panadeine Forte at night. The fact that Ms Nguyen rejected treatment with steroid injections, which is generally accepted as reasonable treatment for this type of condition and was likely to significantly reduce inflammation and relieve her pain, tends to suggest that the her symptoms may not be as severe as she claims.

57. In my view the fact that Ms Nguyen’s right shoulder condition was diagnosed only three weeks prior to the date of claim and that she has refused reasonable treatment tends to support a conclusion that during the claim period the condition was not fully treated and fully stabilised.

58. Furthermore, if I were to accept that the right shoulder condition was permanent during the claim period there is insufficient evidence before the Tribunal to allow any reasonable assessment of functional impact during that period and therefore a rating under the Impairment Tables could not be assigned.

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

    DECISION

60. The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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

Dated    10 June 2015

Date of hearing	6 May 2015
Applicant	In person
Solicitor for the Respondent	S Wavamunno; Department of Human Services