O'Halloran and Secretary, Department of Social Services (Social services second review)

[2017] AATA 2283

O'Halloran and Secretary, Department of Social Services (Social services second review) [2017] AATA 2283 (16 October 2017)

Division:GENERAL DIVISION

File Number:           2015/4859

2017/3777

Re:Matthew O'Halloran

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones
Member Hallwood

Date:16 October 2017

Date of written reasons:        8 November 2017

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review

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Senior Member Britten-Jones

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether conditions fully diagnosed, treated and stabilised in the relevant period - whether there is an impairment rating of at least 20 points - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member Britten-Jones
Member Hallwood

8 November 2017

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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Administrative Assistant

Dated: 8 November 2017

Date(s) of hearing:	16 October 2017
Advocate for the Applicant:	Ms M Riley
Solicitors for the Applicant:	Welfare Rights Centre
Advocate for the Respondent:	Ms L-A Odgers

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. SENIOR MEMBER:   This is an application with respect to Disability Support Pension (DSP).  There are, in fact, two applications because there was a first claim made on 9 July 2014 and then a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, who made a ruling on 18 August 2015, which affirmed an earlier decision of an authorised review officer made on 15 May 2015 which rejected Mr O’Halloran’s claim for Disability Support Pension.  Then there was a second claim made by Mr O’Halloran for Disability Support Pension on 21 September 2015 and there was a decision made on 22 June 2016, which affirmed the decision of an authorised review officer that had been made on 8 March 2016, which also rejected Mr O’Halloran’s claim for Disability Support Pension.  So the Tribunal needs to consider both of those decisions and does so in these reasons.

2. The issue ultimately is whether those decisions made on 18 August 2015 and 22 June 2016 are the correct or preferable decisions.  The relevant legislation is the Social Security Act 1991 (the Act), section 94(1)(a), (1)(b) and (1)(c).  Section (1)(a) relates to whether or nor Mr O’Halloran had an impairment as set out in that section and (1)(b) deals with if there is such an impairment, whether they attract an impairment rating of at least 20 points under the Social Security Determination for 2011 and then there is a third and cumulative requirement as to whether Mr O’Halloran had a continuing inability to work as required by section 94(1)(c) of the Act.

3. Because the claim was first lodged by Mr O’Halloran on 9 July 2014, the relevant period for the purposes of assessing the DSP application in 2014 is the period from 9 July 2014 to 8 October 2014. With respect to the second claim being brought on 21 September 2015, the relevant period is 21 September 2015 through to 21 December 2015.  There was some issue raised with respect to the date of the effect of those decisions due to an allegation that Mr O’Halloran had failed to seek an internal review of the decision to reject his claim for Disability Support Pension within 13 weeks of that decision.  It was later accepted by the respondent, with respect to the second claim, that the relevant date is 14 September 2015.  With respect to the first claim, the respondent did not concede that the relevant date was 9 July 2014 and asserted that it was 15 April 2015 but there is little evidence as to the correct position.

4. In terms of assigning impairment ratings, Part 2 of the Impairment Tables Determination contain certain Rules for the application of those Tables.  The Tables are function based rather than diagnosis based.  Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.  The Impairment Tables will only be applied after the person’s medical history has been considered and an impairment rating can only be assigned if the condition causing the impairment is permanent and that the impairment is likely to persist for more than two years, and that is dealt with in sections 6(2) and (3) of the Rules.

5. The Rules at paragraphs 10 and 11 are relevant in this case as well.  They contain guidance on selecting the appropriate table and assessing impairments.  I note paragraphs 10(5) and (6) provide that where multiple conditions cause a common impairment, a single rating should be assigned under a single Table and that it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.  Section 11 of those rules provides that if an impairment is considered as falling between two impairment ratings, then the lower of the two ratings is to be assigned and the higher rating must not be assigned.

6. It is accepted by the Secretary that during each of the qualification periods Mr O’Halloran had the requisite impairment for the purposes of paragraph 94(1)(a) of the Act and, therefore, it falls to consider section 94(1)(b).  To do that, it is necessary to consider the evidence that was given by Mr O’Halloran to the Tribunal and it is also necessary to see whether or not the evidence that was given with respect to impairment and/or conditions was, indeed, then corroborated with appropriate medical evidence. 

7. Mr O’Halloran is a 45 year old man who has lived in Ascot Park since 2000.  He takes care of his daughter, who is 12 years old and who lives with him, together with a step-daughter who is 19 years old. 

8. Mr O’Halloran has, in the past, worked as a cleaner and had a job at Bunnings as a person who provided odd jobs and cleaning services to Bunnings.  Ultimately, the work at Bunnings did not work out for Mr O’Halloran because he was not able to deal with customers and the requirements that Bunnings imposed upon him.  He was at Bunnings for four years working fulltime from about the age of 35 through to 39.  He has tried some computer learning and training but he said that he could not work it out and also he had difficulty remembering where things were in the Bunnings store and that he could not remember instructions that were given to him. 

9. After Bunnings, Mr O’Halloran tried cleaning and he was working for about 30 hours a fortnight from May of 2012 and that was reduced back to about six hours per fortnight.  When he finished working as a cleaner in March 2015, he was only doing six hours a fortnight, or about three hours a week.  Mr O’Halloran was, effectively, fully unemployed from 2015.  During that period of cleaning in the years 2012 through to 2015, Mr O’Halloran would work in office premises, often on his own.  He found it difficult, in particular, because of his physical impairment involving his fingers and not enabling him to grip things and certainly any gripping, which was carried out on a repetitive basis, was very difficult for him so therefore, it was very difficult for him to use a vacuum cleaner, together with bottles of detergent and the like, which required him to use his fingers and to grip the bottle.  He also gave a story of not being able to lift the toilet paper from one area to another and having to drag it along the ground into the office building.  So it is clear to the Tribunal that Mr O’Halloran had difficulty in carrying out his duties, both at Bunnings and later with respect to the cleaning company.  

10. Reverting now to daily tasks that were carried out by Mr O’Halloran during the relevant periods, Mr O’Halloran told the Tribunal that he sets his alarm early in the morning at 6.30 am and he actually has numerous alarms to make sure that he does get up.  He does have difficulty sleeping due to the pain that he suffers.  When it comes to having a shower he is able to get himself into and out of the shower but he does have a chair adjacent to the shower recess so that he can sit down, so as to dry himself and to dress himself.  In terms of putting his clothes on, it is an effort for Mr O’Halloran to do up any buttons on a shirt, for example, so he tends to avoid them and tends to wear baggy clothes without buttons.

11. He has difficulty brushing his teeth, due to not being able to hold the toothbrush with his fingers, and the same can be said in respect to using a knife and fork and he said that he can hold a pen with his fingers but he has difficulty, for example, using a touchscreen phone and he uses one of the old phones, which enables him to use his fingernails to press down the numbers.  He said that he has been suffering from consistent pain since the period of about 2010 to 2012.  He did a gardening course back in the 1990s but had an accident with a chainsaw after it fell from his grip because he could not hold it.  Mr O’Halloran said that he can do up his shoelaces if he can get to them but prefers not doing that and, therefore, avoids wearing laced shoes and will normally wear slip-on shoes. 

12. In the morning after getting up, Mr O’Halloran, on a typical morning, would make his breakfast, and also for his daughter, and the same goes for lunch.  He does the shopping but he described that he has a genuine difficulty in remembering what is required for the shopping, in particular, with respect to what his daughter wants to be bought, so he will keep the labels from the previous shopping expedition so that he can remember what to buy.  Other times he might write it down because, otherwise, he might forget when he gets to the shopping centre.  He takes his daughter to school by car, which is a manual, and other times, if not by car, he will ride on his bike whilst his daughter walks.  Sometimes he walks to school and, if he does so, it takes him about 15 minutes to cover the distance which is about 900 metres.

13. During the day, he might use a computer to watch YouTube videos and occasionally checks on a Facebook account, which was set up for him.  He will make himself a sandwich for lunch.  He does his own washing but when it comes to hanging the washing out, he has difficulty reaching up on an overhead clothesline and, therefore, he does not use pegs on an overhead clothesline, rather he throws the sheets over the clothesline to get them up that high or, alternatively, drapes the washing over a chair.

14. If he does any gardening, he gave evidence that he can really only last for about five minutes or so because he will get puffed out.  He will make the dinner for his daughter but he cannot open jars and he has difficultly using a hand can opener, so he uses an electric can opener.  He avoids overhead cupboards.  He said that he could get something down from those cupboards but he risked dropping it if he did, which I take it to mean it is more of a reference with respect to the inability to grip, which seems to be a constant problem for Mr O’Halloran.

15. In terms of other matters, Mr O’Halloran finds it very difficult to concentrate for more than 10 minutes on any one task, including watching television or doing his daughter’s homework, which he has difficulty even completing homework at a Year 4 level, which is the evidence that he gave.  He has difficulty vacuuming the house.  When he goes shopping, he is able to hold a basket but he holds it close to his chest to assist him to do so and he also relies upon the trolley for support. When he drives, he can move his head around but he is careful because he does suffer pain if he does that for too long. 

16. Mr O’Halloran gave evidence that he can stand for about 10 minutes without any pain but thereafter there will be some pain but he, indeed, can stand for a longer period of time if required.  He is able to catch public transport, in particular, he caught the train to the tribunal today, although he said he avoids the bus because of the requirement to walk up steps.  If he does have to walk up more than about 10 steps, he gets extremely puffed.  Mr O’Halloran has been taking painkillers at various times to deal with the ongoing pain that he suffers and his GP, Dr Farrent, has offered him more painkillers but warned him that it could stop him driving and have a detrimental effect on his behaviour and it is because of those reasons that Mr O’Halloran prefers to avoid painkillers and just to put up with the pain. If he does any form of activity, then the pain gets worse and he will try to move around and put up with the pain.

17. Having said that, Mr O’Halloran gave evidence today and has sat in a chair in the period of the morning hearing from about 10 am through to 1 pm.  Occasionally Mr O’Halloran would move in his seat to make himself more comfortable and it was clear that, at times, he was suffering some discomfort as a result of sitting in a chair for that length of time.  In terms of his level of concentration, the Tribunal noted an ability to answer all questions that were put to him in a coherent manner and it appeared that he had no difficulty comprehending the questions that were being put to him nor did he have any difficulty articulating an answer and, indeed, expressed himself very well.

18. Mr O’Halloran was asked about that in cross-examination and said that he was making an effort and, indeed, it was apparent that he did that and I find that he was a very candid and truthful witness who was answering questions to the best of his ability.  Mr O’Halloran, being the person in the house looking after his daughter, in particular, has to deal with matters such as registering the car and dealing with the bank and he said that he is able to do all those things, although he needs help with them.  But, otherwise, he does run the affairs of the house himself, which includes dealing with matters of insurance and school forms and the like, although, as I said, he uses others to assist him with that.

19. I will turn then to the medical evidence.  There is a medical report from a Dr Jim Farrent.  He has been Mr O’Halloran’s treating doctor since  15 August of 1998.  He prepared a report to support the initial application for Disability Support Pension.  That report is dated 11 July 2014.  In that report he listed two conditions that Mr O’Halloran suffered from.  The first was described as paroxysmal AF, which had an onset date of November 2009, and there was various past treatment and a current treatment.  The future treatment was described as ongoing medical management.  The impact on function that is recorded in Dr Farrent’s report is “episodes of palpitation that affect stamina and endurance at the time.”  The condition was expected to last more than 24 months and to remain unchanged.

20. The second condition is a right shoulder injury and multiple joint pain, which commenced in about November of 2013.  It was noted by Dr Farrent that there were no specialist reports available and that he had hurt his shoulder in carrying out a lifting exercise. Dr Farrent recorded that Mr O’Halloran suffers multiple pains in his upper arms and neck pain with complaints of weakness in his right hand.  In terms of the impact on function, it was reported by Dr Farrent that Mr O’Halloran had reduced power and grip and poor endurance and that the pain increased with activity and it was said that the cause for that remained unclear.

21. In August of 2014, Mr O’Halloran was assessed for his Disability Support Pension and a Job Capacity Assessment report was prepared.  That listed his heart disease as a condition and it was noted that Mr O’Halloran had said that he had been reviewed by a cardiologist and that he reported experiencing a racing heart a couple of times a week lasting between 10 to 60 minutes.  Mr O’Halloran said to the Job Capacity Assessment officer that he tires easily and has difficulty climbing stairs, that he did the housework and shopped independently.  The second condition noted in the Job Capacity Assessment report is what is described as a musculo-skeletal disorder and that is a reference to the right shoulder injury with multiple joint pain commencing in November 2013.

22. Mr O’Halloran reported to the Job Capacity Assessment officer that he was unable to clean the shower and wipe walls with his right arm and that he finds it difficult to clean the toilet and he uses his left arm to vacuum.  That is consistent with what he told the Tribunal today.  It was noted that the report from the treating doctor, Dr Farrent, referred to the reduced grip and power, especially in the right hand, and poor endurance.  There is a third condition reported, which is that of asthma, but it was noted that the condition is well controlled based on what was said by Mr O’Halloran.

23. In terms of impairment, the Job Capacity Assessment officer referred to Table 1 and the functions requiring physical exertion and stamina and recommended a rating of five points under that Table on the basis that there was a mild functional impact on activities requiring physical exertion or stamina.  With respect to the asthma, he found no further rating and, therefore, it was concluded that there was a total rating of five, which obviously form the basis for the initial rejection of the disability support application.  I note the presence of an earlier report from Dr Jim Farrent at 12 May 2014, which refers to the paroxysmal AF and polymorphous light eruption and asthma.  The report says that:

    This man continues to really struggle financially and with his health.  He has multiple small joint pains but no clear diagnosis.  He puts in significant effort to look after his children but has very limited resources and his former partner is completely unreliable.  If he was not available I would have significant concerns for the safety of his children…

    The report goes on to say that:

    Matthew has issues with his scholastic abilities and needs basic skills training.

    and that,

    At present he is unable to perform any heavy tasks.

    and that

    He has had admissions for his palpitations but no further management is planned at present.

24. I accept what is set out in that report from Dr Farrent dated 12 May 2014.  In respect to psychological assessment, a comprehensive assessment was carried out by a psychologist, Rose Price, in January of 2015.  Ms Price referred to two areas of significant difficulty and that Mr O’Halloran has great difficulty with respect to memory and processing and that he finds it hard to remember a sequence of instructions or a lengthy verbal explanation.  She concluded that Matthew’s higher order cogitative abilities are in the average range, however, his lower order cognitive abilities, such as working memory and processing speed, are well below average.  In terms of literacy, his reading is very slow and his spelling and handwriting skills are well below average. 

1. She further concluded that Matthew has a significant and serious learning disorder and that he has marked working memory and processing speed difficulties and that these get in the way of him remembering verbal information and sequences and getting through tasks that involve letters and numbers. Ms Price said that he has great difficulty spelling and writing and his skills in this area are well below average and that his number skills are also poor.  She concluded that these results are consistent with the specific learning disorder of dyslexia and she considered that it was certainly the case that Mr O’Halloran had dysgraphia.

2. Dealing then with the further medical reports in a chronological sequence, I refer next to a report from Dr Joanna Tieu, the Rheumatology Registrar at the Flinders Medical Centre.  Her report of 31 March 2015 lists three problems; the atrial fibrillation with rapid ventricular response, the asthma and intellectual impairment.  It referred to his previous work as a cleaner, which ceased in September of 2014 due to significant joint and soft tissue pains.  Ms Tieu referred to the description that Mr O’Halloran gave of a 10 year history of fleeting and intermittent joint symptoms and soft tissue pain and that he described tender areas, particularly over his elbow, back, neck, face and joints in his jaw and hips and knees.

3. Ms Tieu carried out an examination and recorded there being certain multiple tender areas and concluded that:

   His upper and lower limb examinations were unremarkable with normal tone, power, reflexes and sensation to pinprick throughout.

4. Ms Tieu then wondered whether there was an element of osteoarthritis, particularly in his hips and knees, to explain the locking and instability that he feels with these and to rule out other causes for his pain she organised for him to have certain tests and X-rays and for him to be reviewed in two months’ time and she also arranged for Mr O’Halloran to be referred to the cardiology clinic, given his six year history of atrial fibrillation and a recurrent episodes of atrial fibrillation with rapid ventricular response.  Ms Tieu further wondered whether his medications could be optimised further or if he would be a candidate for cardioversion or ablation therapy. 

5. Ms Tieu did a follow-up of Mr O’Halloran and prepared a further report on 9 June 2015.  In that report, she noted that Mr O’Halloran continues to have ongoing investigations through cardiology to whom he was referred in his last review and that he had been booked for a sleep study to investigate for obstructive sleep apnoea.  She described the examination occurring on that day, namely 9 June 2015, as showing that there was a normal range of motion in the remainder of his joints though there were multiple tender areas.  She noted the pain that he suffers when he opens and closes his fist.  She concluded that Mr O’Halloran displays features of a chronic pain syndrome without a clear underlying inflammatory cause at present and she said that the aetiology of his symptoms is uncertain and that it appears that there are atypical features for fibromyalgia and she wondered whether there was a sleep disturbance contributing to his symptoms.

6. She suggested to Mr O’Halloran to see a psychologist to further assess his symptoms and a possible mood disorder but that also that psychologist might be able to teach him some relaxation techniques and, in particular, help him with his chronic pain management.  Mr O’Halloran said in cross-examination that he spoke to Dr Farrent about taking the advice from Ms Tieu regarding seeing a psychologist but that Dr Farrent considered that it might have a more detrimental than beneficial effect on him if he were to see a psychologist and that is the reason why Mr O’Halloran did not proceed to see a psychologist as recommended by Ms Tieu.  Ms Tieu also advised Mr O’Halloran to commence an exercise regime and to do some stretching exercises and he gave evidence that he did do that.

7. In August of 2015, Mr O’Halloran saw a Dr Andrew Russell, who is a cardiologist, at the Repatriation Centre and there was an echocardiogram that showed an essentially normal study and no significant abnormality was detected.  The report from Dr Russell also advised that there was a negative sleep study and Mr O’Halloran confirmed that there was no issue with respect to sleep apnoea or the like.  There was a further Job Capacity Assessment report dated 12 October 2015 which was carried out after the second application for Disability Support Pension.  That referred again to the heart disease, namely the paroxysmal atrial fibrillation saying that it had been fully diagnosed, fully treated and fully stabilised.  It also referred to the condition of fibromyalgia and the condition of asthma and the condition of learning disability.

8. In terms of impairment, the Job Capacity Assessment report gave zero rating to the heart disease on the basis that there was no functional impact on activities requiring physical exertion or stamina and reference was made to the earlier report from Dr Farrent of 11 July 2014.  In respect of the learning disability, zero points were given.   The next report is dated 9 December 2015. This is a further report from Ms Price and it concludes that:

   A further diagnostic assessment of Matthew’s literacy and numeracy skills indicated that he has specific learning disorder of dyslexia and … dysgraphia

   and that they

   have been a significant obstacle to Mr O’Halloran throughout his life and caused him much humiliation and difficulty.

   Ms Price recorded that Mr O’Halloran:

   … finds it hard to recall verbal or written instructions and he has great difficulty processing verbal or written information quickly or accurately

   and that

   these problems have an impact on his everyday life.

9. She concluded that she felt that he could not manage desk work, which would require reading and writing skills, nor could he manage work in a retail setting.  With respect to the specific Impairment Tables that she was asked to consider, she was of the opinion that Mr O’Halloran sits somewhere between there being a moderate functional impact and severe functional impact, as a rest of his cognitive functioning with respect to Table 7 and she concluded a moderate to severe functional impact on his daily functioning and that Mr O’Halloran’s cognitive impairments can have a severe functional impact on his attention and concentration, planning and decision making.  Ms Price provided a further report on 16 March 2016 where she considered that under the relevant rules for impairments that a single condition can cause multiple impairments and that, therefore, it would be appropriate to assess the impairments in both Table 7 and Table 8.

10. Finally, there is a further report from the Rheumatology Registrar at the Flinders Medical Centre dated 12 April 2016, which is after the relevant period, even on the second application.  She reported the widespread aches and pains that Mr O’Halloran had been feeling going back to his childhood, although without an inflammatory component.  She reported that Mr O’Halloran had diligently tried a course of hydrotherapy, as well as physiotherapy, and that he does not feel that these have helped his symptoms too much and she examined him and concluded that he has a full range of movement in his shoulders, elbows, hands, knees and hips and that his power in all joints is five out of five and his reflexes are symmetrical. 

11. She discussed with Mr O’Halloran the importance of regular gentle exercise, as well as sleep hygiene, plus conservative measures for his symptoms and also discussed for him to introduce a neuropathic agent.  However, she recorded that Mr O’Halloran felt that he would prefer not to do that just yet.  She said that she would look forward to seeing him in about six months’ time.  That deals with both the evidence from Mr O’Halloran and also the medical evidence.  

12. It is now necessary to consider whether or not Mr O’Halloran’s impairments attract 20 or more points under the Impairment Tables during the relevant qualification periods.

13. With respect to the chronic pain disorder, it is noted what Dr Jim Farrent said in his report, namely that there was a diagnosis of a right shoulder injury and there was multiple joint pains and that there was a current treatment of that.  It was noted that in that report by Dr Farrent that the cause remains unclear for this and that some functional overlay, given personal, social and financial situation, because of his very limited resources.  I note also the report from the rheumatologist, Dr Tieu, of March 2015 that refers to the soft tissue pain of unclear aetiology.  At that stage Dr Tieu was not able to provide a full diagnosis and queried whether there was an element of osteoarthritis, particularly in the hips and knees, and Dr Tieu suggested further testing to help establish a diagnosis and so, at that stage, there was no concluded diagnosis.

14. It was also noted in the Job Capacity Assessment report of 15 April 2015 that Mr O’Halloran had said that he had been only recently diagnosed with fibromyalgia, which Dr Farrent had reported has an uncertain prognosis, and that that condition was still under investigation at the Flinders Medical Centre.  It is the Tribunal’s finding that during the first qualification period no diagnosis had been provided for Mr O’Halloran’s reported symptoms and further investigations to establish a cause had not been undertaken.  The chronic pain condition was not fully diagnosed, fully treated or fully stabilised as at the first qualification period and, therefore, no impairment rating can be assigned to any resulting impairment for the purposes of the first claim.

15. With respect to the second claim, the Tribunal finds that Mr O’Halloran’s chronic pain condition was not fully diagnosed and treated and established during that second qualification period from September 2015.  The Tribunal notes a medical certificate dated 1 April 2015, listing fibromyalgia as a condition, but also that the prognosis was considered to be uncertain and it was noted that further investigations were being undertaken at the Flinders Medical Centre.  The Tribunal also notes the further report from Dr Tieu dated 9 June 2016, in which she noted that Mr O’Halloran had been booked in for a sleep study as obstructive sleep apnoea could account for some of his symptoms.

16. There was a further reference by Dr Tieu in that report of June 2016 to ongoing investigations through cardiology and that the chronic pain syndrome did not have a clear inflammatory cause and that the aetiology of his symptoms was uncertain at that time.  It was further noted that it appeared that there were, in fact, atypical features for fibromyalgia and, at that time, that Dr Tieu was considering whether or not sleep disturbance was contributing to Mr O’Halloran’s symptoms.  It was in that report of June 2016 also that Dr Tieu has suggested some psychological input, which did not take place. The Tribunal also notes the report dated 12 April 2016 from the rheumatologist, which stated that Mr O’Halloran had undergone physiotherapy and hydrotherapy in relation to his complex pain syndrome and that the rheumatologist suggested that Mr O’Halloran undertake a regime. 

17. The Tribunal concludes that the chronic pain condition cannot be considered fully diagnosed for the purposes of the second claim.  There is medical evidence, that even some months after the second claim, investigations were still being undertaken and that supports the conclusion that the condition had not been diagnosed as at the second qualification period.  Next, with respect to the paroxysmal atrial fibrillation, it is accepted by the Secretary that Mr O’Halloran’s paroxysmal atrial fibrillation was fully diagnosed, treated and stabilised during the two qualification periods and the Tribunal agrees with that. 

18. Dr Farrent stated in that first report of July 2014 that Mr O’Halloran suffered from episodes of palpitations that affect stamina and endurance.  The Job Capacity Assessment report dated 18 August of 2014 noted that Mr O’Halloran had reported symptoms of a racing heart a couple of times a week lasting between 10 and 60 minutes.  Mr O’Halloran was then referred to a cardiology clinic in March 2015 and further tests were carried out which showed an essentially normal study and no significant abnormality was detected. 

19. We pause to note paragraph 11(4) in the introduction to the Impairment Tables.  That refers to episodic or fluctuating conditions and that a rating must be assigned which reflects the overall functional impact of these impairments taking into account severity, duration and frequency of the episodes or fluctuations.  Mr O’Halloran’s atrial fibrillation episodes, based on what he told the Job Capacity Assessment officer, only occurred a couple of times per week lasting as little as 10 minutes and there is no medical evidence that verifies any long-lasting functional impairment from this condition between episodes and there is no evidence of any deterioration in that condition between the date of the first and the second claim.  Consequently, the Tribunal finds that Mr O’Halloran’s condition had a minimal functional impact and, accordingly, gives an impairment rating of zero under Table 1 with respect to both the first qualification period and the second qualification period.

20. With respect to the third condition of asthma, it is not contended that that condition, or any impairments arising from it, should give rise to any rating under the Tables and it would appear that that condition is well controlled and so, therefore, zero points will apply to that.  With respect to the learning disability described as dyslexia and dysgraphia, there is no dispute that Mr O’Halloran suffered from these conditions prior to the time of the first claim and that, therefore, the learning disability condition had been fully diagnosed, treated and stabilised as at the date of both the first claim and the second claim.

21. There is evidence from Ms Price in her report of 31 January 2015, to which the Tribunal has already referred.  There is evidence from Dr Jim Farrent in a letter of his dated 11 September 2015 in which he stated that Mr O’Halloran had limited literacy and numeracy skills and there is a further report from Ms Price dated 9 December 2015 in which she considered that Mr O’Halloran suffered from a significant cognitive impairment but not an intellectual disability.  She concluded that his impairment sat somewhere between there being a moderate functional impact and a severe functional impact as a result of his cognitive functioning.  The Tribunal concludes that the appropriate Impairment Table to allocate points for Mr O’Halloran’s learning difficulties is Table 7.  The Tribunal finds that Mr O’Halloran’s learning disability causes a moderate functional impairment and should be assigned 10 points under Table 7. The Tribunal refers to rule 11(1)(c) for concluding that it should be a moderate functional impact and not a severe functional impact.

22. The Tribunal finds that the impact of this condition should not be assessed under Table 8, which assesses a communication function, noting that there is some overlap between what is found in Table 8 and Table 7.  It was Ms Price’s evidence that Mr O’Halloran had a learning disability, meaning that he has difficulty making good sense of what he has read.  It is this impairment which is adequately dealt with under Table 7, which takes into account difficulties with comprehension, as well as other areas such as memory, attention, concentration and problem solving.  The Tribunal refers to subsections 10(3) to (6) of the Rules and notes that the same impairment must not be assigned an impairments rating under more than one table.

23. In summary, the Tribunal finds that Mr O’Halloran’s overall impairment rating, in respect of the first claim and the second claim, was 10 points and that he, therefore, does not satisfy paragraph 94(1)(b) of the Social Security Act and, therefore, is not eligible for Disability Support Pension. The Tribunal notes that given the three elements in s 94(1) are cumulative, there is no need to consider the third element in s 94(1)(c) regarding continuing inability to work and so the Tribunal makes no findings with respect to that matter. It will be the decision of the Tribunal that the decisions under review are affirmed.

    END OF ORAL DECISION  [5.47 PM]