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

[2015] AATA 907

Packer and Secretary, Department of Social Services (Social services second review) [2015] AATA 907 (25 November 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6183
Re	Susan Packer
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	25 November 2015
Place	Brisbane

The Tribunal affirms the decision under review.

.............................[Sgd]...........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether impairments totalling at least 20 points – question of severe impairment – continuing inability to work – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 2A

Social Security Act 1991 (Cth) s 94

Social Security Administration Act 1999 (Cth) ss 42, 179, sch 2 cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 7, 11

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

25 November 2015

INTRODUCTION

1. I have to decide whether the applicant, Ms Packer, was eligible to receive disability support pension (“DSP”) at the date of her claim or within the 13 weeks that followed.

   Prior Decisions

2. The applicant made a claim for DSP on 11 March 2014. On 11 April 2014, the Department decided that the applicant was not eligible for DSP, and the applicant subsequently sought review of that decision on 15 May 2014. An Authorised Review Officer affirmed the decision on 22 July 2014 and the Social Security Appeals Tribunal (“SSAT”) decided to affirm the decision under review on 16 October 2014. The applicant applied to this Tribunal for review of the decision on 27 November 2014.

3. The applicant has submitted a copy of the decision of the SSAT dated 16 October 2014. A handwritten note in that copy indicates that a claim for DSP was made earlier than 11 March 2014. Certainly the applicant was in contact with the department regarding DSP since as early as February 2014[1] and letters were sent to the applicant confirming her intention to claim DSP on 10 and 25 February 2014.[2] However no formal claim form earlier than that dated 11 March 2014 is present in the documents. This Tribunal may only review DSP matters which have been reviewed by the SSAT and subsequently affirmed, varied or set aside by that body.[3] It is clear that the SSAT embarked upon a review of the decision made on 11 April 2014 in relation to the claim for DSP made on 11 March 2014;[4] accordingly I am satisfied that this Tribunal can review the decision of 11 April 2014.

   [1] Exhibit A, ff 203-207.

   [2] Ibid, ff78; 80.

   [3] Social Security Administration Act 1999 (Cth) s 179 (superseded).

   [4] Exhibit A, f 9 paragraph [1].

   RELEVANT LAW

4. The law relevant to this application is contained in the following:

   ·            Social Security Act 1991 (Cth) (“the Act”);

   ·            Social Security Administration Act 1999 (Cth);

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

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

5. 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) one of the following applies:

   (i)  the person has a continuing inability to work;[5]

   …

   [5] Social Security Act 1991 (Cth) s 94.

6. There is no issue that the applicant suffers from impairments. She states that she is in pain every day and as a result finds it hard to walk. She has a lot of problems variously with her skull, neck, arm, spine and tailbone. She says she has had depression since 1993 due to difficult family circumstances including the deaths of close relatives.[6] Previously, the applicant had worked seven days per week and if she was healthy enough, she would have returned to work five years ago, but she says that she is not capable anymore.[7]

   [6] Exhibit A, f 2.

   [7] Ibid.

7. It is critical to the success of the applicant’s claim that any conditions were capable of being regarded as “permanent” at the time of the claim or within the relevant period, being 13 weeks following the claim.[8] The relevant period in this case is from 11 March 2014 to 10 June 2014. “Permanent” has a special meaning under the Impairment Tables. In particular, a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   (c) the condition has been fully stabilised; and

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.[9]

   [8] Social Security Administration Act 1999 (Cth) s 42; sch 2 cl 4.

   [9] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(4).

   CONDITIONS

8. The applicant attended the hearing in person with a friend who acted as a support person.

9. The applicant has listed certain conditions in her claim for DSP, [10] namely:

   [10] Exhibit A, f 93.

   ·severe arthritis throughout the skull, neck and back;

   ·a fused neck and prolapsed discs;

   ·compressed nerves in the back;

   ·limited use of the left arm;

   ·diabetes;

   ·depression;

   ·DVT;

   ·migraines;

   ·high blood pressure;

   ·chronic pain in the back, neck and hips;

   ·arthritis in the knees.

10. During the hearing, the applicant indicated that there may be medical documents not before the Tribunal.  I informed the applicant that it was her last opportunity for merits review and that it was important for all relevant material to be before me. Accordingly the hearing was adjourned for a short break to afford the applicant the opportunity to locate the missing documents. It became clear that more time was necessary and so following the conclusion of the applicant’s oral evidence, the proceeding was adjourned to enable a search to be made of medical documents.

11. Having reviewed further evidence and detailed written submissions from each of the parties it is appropriate, considering the statutory objectives of this Tribunal,[11] to now decide the matter on the available material before me.

    [11] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.

    Back Condition

12. Dr Nguyen, a general practitioner, has produced a medical report dated 1 March 2014[12] which lists lumbar disc prolapse: L3/4, L4/5 and osteoarthritis of the neck, lumbar, lower facet joint, hips and shoulders as conditions which cause chronic neck and back pain. The condition means the applicant can stand, sit or walk for 5 minutes. The doctor says also that the applicant has a limited range of movement. Dr Oo, in a report dated 3 March 2015,[13] states that the applicant has low back pain due to degenerative changes and disc pathology. He says the condition impacts on the applicant’s ability to function: she has problems standing, sitting and walking more than 5 minutes. Dr Bairagi in a medical report dated 6 March 2015[14] makes a diagnosis of lumbar disc prolapse at L3/4 and L4/5 causing symptoms of chronic lower back pain. The doctor notes that the applicant has limited mobility, rests after walking 5-10 minutes and has a limited range of movement. Each of the three doctors has indicated the impact of the spinal condition on the applicant’s ability to function is expected to persist for more than 24 months. A report produced in February 2013 following magnetic resonance imaging of the cervical and lumbar spine certainly indicates abnormalities in the applicant’s spine.[15]

    [12] Exhibit A, ff 109-120.

    [13] Ibid, ff 121-131.

    [14] Ibid, ff 132-142.

    [15] Exhibit G.

13. Drs Nguyen and Bairagi note the diagnosis contained in their respective reports is supported by the specialist opinion of Dr Watson, Neurologist, dated 2004;[16] however the Tribunal does not have the benefit of that opinion. A letter to Centrelink by Dr Watson in May 2014 noted the applicant is “troubled by severe low back and right hip pain related to documented degenerative disease”,[17] however the letter does not shed light on the functional impact of the conditions.

    [16] Exhibit A, ff 112; 138.

    [17] Ibid, f 162.

14. There are also two job capacity assessment reports to consider. In applying the Impairment Tables, work capacity information that may be available must be taken into account.[18] The earlier report dated 7 April 2014 states that “the [applicant] was observed to sit for at least 30 minutes with minima[l] postural movement before standing during the assessment”.[19] A second job capacity assessor noted in relation to an assessment performed on 2 June 2015 that “the [applicant] was observed to sit for 30 minutes without significant obvious discomfort”.[20]

    [18] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 7(1)(b).

    [19] Exhibit A, f 148.

    [20] Ibid, f 164.

15. These reports from the job capacity assessors are inconsistent with the medical evidence given by Drs Nguyen and Oo in relation to the ability to sit. The applicant gave oral evidence that in relation to the earlier job capacity assessment, she had taken pain killers half an hour before the assessment, which had taken effect, allowing her to sit for the time specified in the report. She said further that she does not sit straight but rather to the side and has found a position that is the least painful.

16. The applicant stated she cannot hang out washing, instead she puts it over a clothes airer and a friend helps her clean. She still has a driver’s license and can drive to the shops which are three minutes away, but cannot, for example, turn her head to see traffic behind her.

17. I consider that the applicant meets the description for a moderate functional impact on activities involving spinal function.  It is appropriate that the applicant is assigned 10 points under Table 4 – Spinal Function. Even if it were the case that the applicant met some of the descriptors for a severe functional impact under that table, I am unable to assign an intermediate rating and may not assign the higher rating unless all the descriptors for that level of impairment are satisfied.[21] The applicant has given evidence that she was able to remain seated in the relevant period for 30 minutes with the aid of medication. I am unable therefore to assign a rating of 20 points for the spinal condition.

    [21] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 11(1)(b)-(c).

    Venuous Thrombosis

18. Dr Bairagi in a medical certificate dated 11 February 2014[22] indicated that venuous thrombosis in the left arm was a condition which impacted the applicant’s capacity to work or study. The doctor noted the condition was temporary with symptoms affecting the capacity to work or study for 3-12 months. As the thrombosis condition was not likely to persist for two years or more, I consider that it is not permanent within the meaning of the Impairment Tables, and so I cannot assign a rating to that condition.

    [22] Exhibit A, f 79.

    Diabetes

19. There is reference made by Dr Bairagi to the applicant’s diabetes condition, which has been treated with Metformin tablets since 2008. The doctor notes the diabetes sometimes made the applicant feel tired and weak, but was under control with medication and “with treatment the condition can remain unchanged if she continue[s] her treatment and sees [her] doctor regularly.” The doctor expects the condition to persist for 24 months, and it is fair to regard it as fully diagnosed, fully treated and fully stabilised. The Impairment Tables note that where there is no functional impact “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.”[23] In the absence of further evidence of any impact on the ability to function, it is not appropriate to assign an impairment rating greater than 0 points.

    [23] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(8).

    Depression

20. The applicant has a history of depression and anxiety. Drs Oo and Bairagi note that the depression condition is generally well-managed and causes a minimal or limited impact on the applicant’s ability to function.[24]

    [24] Exhibit A ff 130; 141.

21. A letter from Dr Smith dated 13 July 2015 notes that the applicant has a history of Major Depressive Disorder and was in the doctor’s care in July, 2010. I do not regard the letter as a diagnosis within the relevant period of the applicant’s depression condition.

22. Dr Nguyen by contrast made a diagnosis of a depression and anxiety, and notes that the condition is expected to persist for 24 months and that in the next two years, the effect of the condition on the applicant’s ability to function is expected to remain unchanged.[25]

    [25] Ibid, ff 115-117.

23. Any diagnosis by an appropriately qualified medical practitioner that is not a psychiatrist must be made with evidence from a clinical psychologist.[26] Ms Sollman, a registered psychologist, identified in a report dated 10 December 2014 that the applicant had attended six psychological consultations and presented complaints of depression for the last 20 years.[27] This report was produced at the conclusion of six sessions following a referral in September 2014, which is much later than the relevant period.  I cannot therefore be satisfied that the applicant’s depression condition was fully diagnosed, fully treated and fully stabilised within the relevant period and I am unable to assign an impairment rating for this condition.

    [26] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) Table 5.

    [27] Exhibit B.

    Migraines

24. Drs Nguyen and Oo consider that the migraine condition of the applicant is generally well-managed and has a limited impact on the applicant’s ability to function.[28] Dr Bairagi, who lists the applicant as a patient since 2009, does not refer to the migraine condition. A report from Dr Watson, neurologist, dated 6 May 2014 notes that the doctor has been treating the applicant since 2002 and managing her very severe migraine.[29] He states that the applicant experiences a constant daily headache with a severe migraine every two weeks. Dr Watson’s report is corroborated by a Job Capacity Assessment Report conducted after an assessment on 2 June 2014, which indicates that after the onset of a migraine the applicant is able to recover for the next day by resting and lying down.[30]

    [28] Exhbit A, ff 119, 130.

    [29] Ibid, f 162.

    [30] Ibid, ff 163-175.

25. It is fair to regard the condition as permanent in reliance on Dr Watson’s choice of terminology in referring to “managing” the applicant’s severe migraine following a period of treatment of 12 years for the condition. A rating of 5 points under Table 15 is appropriate as there is no evidence that the applicant is unlikely to be granted a driver’s license (on the contrary, the applicant has given evidence she drives a vehicle). I am unable to assign a higher impairment rating as all the descriptors for a greater level of impairment are not satisfied.[31]

    [31] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 11(1)(c).

    Hip & Knee Condition

26. Dr Oo reports the applicant has right hip and knee pain, can walk for a maximum of five minutes and is awaiting a total hip replacement.[32] Dr Nguyen reports the condition in the applicant’s hips is the condition with the most impact, and says similarly that standing, sitting and walking is limited to five minutes. The doctor opines the impact of the hip condition on the applicant’s ability to function is expected to persist for more than 24 months, over which time it will deteriorate.[33] A job capacity assessment report indicated that the waitlist for surgery was likely to be longer than two years.[34] An ultrasound of the left hip on 27 November 2014 shows abnormalities in the applicant’s trochanteric bursa and gluteus minimus tendon, but does not speak to the functional impact of the abnormalities.[35]

    [32] Exhibit A, f 128.

    [33] Ibid, f 114.

    [34] Exhibit A, f 168.

    [35] Exhibit C.

27. In any event I am satisfied that the right hip condition is permanent. The applicant did not dispute the rating assigned to the lower limb functions at the hearing and no new evidence was presented which would cause me to assign a rating other than 10 points under Table 3 for the condition.

    Shoulder Condition

28. The applicant has a shoulder condition on her left side which she says resulted from a fall. A 2004 MRI of the left shoulder showed abnormalities such as oedema, effusion, tendinosis, thickening of a bursa and tears to labrum.[36] An X-ray of the left shoulder conducted on 29 June 2015 shows that “degenerative changes are present in the glenohumeral and acromioclavicular joints.”[37] The applicant in oral evidence stated that her shoulder has “never been right.” She is unable to lift her left arm, which is dominant, and pain shoots up the muscle when she does try to use it. She would not even attempt to lift a 2 L carton of milk, and must use her right hand to grab washing to put in her top-loading washing machine. Clearly a shoulder condition is present. What is not clear is the functional impact of that condition and what further treatment may be anticipated.

    [36] Exhibit H.

    [37] Exhibit D.

29. The applicant has provided evidence of the functional impact of her shoulder condition; however the evidence of functional impact is not corroborated by medical opinion. Shoulder conditions are identified variously by Drs Nguyen[38] and Oo,[39] either as a condition causing minimal or limited impact on the applicant’s ability to function,[40] or as a pain symptom of the applicant’s Lower Back pain.[41] The reports do not make plain what treatment - apart from analgesics - has been undertaken or is anticipated or the expected future impact or persistence of the condition. I am not therefore satisfied that it is fully treated and fully stabilised.

    [38] Exhibit A, ff 112, 118.

    [39] Ibid, f 125.

    [40] Ibid, f 118.

    [41] Ibid, f125.

    Other Conditions

30. The applicant has other conditions which are listed in her treating doctors’ reports. Dr Bairagi notes that the applicant’s hypertension is generally well-managed and has limited impact on the ability to function. Dr Nguyen notes similarly that the conditions of obesity, insomnia, COPD and HT (which I infer are chronic obstructive pulmonary disease and hypertension respectively) have a minimal or limited impact on the ability to function. Accordingly even if I were satisfied that these conditions were fully diagnosed, fully treated and fully stabilised (which I am not) it would not be appropriate to assign an impairment rating to these conditions.

31. I find that the applicant satisfies s 94(1)(b) of the Act in that she has impairments totalling 25 points. It is now necessary for me to consider whether she satisfies s 94(1)(c) of the Act.

    Continuing Inability to Work

32. As the applicant does not have a severe impairment rating under one of the Impairment Tables, it is necessary she have a “continuing inability to work”.[42] The phrase has a special meaning under the Act and certain criteria must be met, one of which is participation in a program of support for at least 18 months in the 36 months immediately prior to the claim.[43] Centrelink file notes show that at the date of claim the applicant had not actively participated in a suitable program of support for the requisite period.[44] The applicant’s evidence was that she applied for the program of support the very same day she applied for DSP. If that is so, then the applicant could not have been engaged in the program of support for the requisite period prior to her claim for DSP. As the applicant does not meet the program of support requirements, it follows that the “continuing inability to work” requirement under s 94(1)(c) of the Act has not been satisfied.

    [42] Social Security Act 1991 (Cth) s 94(2)(aa).

    [43] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5.

    [44] Exhibit E.

    CONCLUSION

1. I affirm the decision under review.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 25 November 2015

Date(s) of hearing	30 June 2015
Date final submissions received	9 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services