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

[2017] AATA 1324

Ryan and Secretary, Department of Social Services (Social services second review) [2017] AATA 1324 (22 August 2017)

Division:GENERAL DIVISION

File Number(s):2016/6217       

Re:Sharon James Ryan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:22 August 2017

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant has physical impairments – chronic lower back pain – Meniere’s disease – heart condition - psoriasis – hiatus hernia – irritable bowel syndrome – diverticulitis – the applicant’s impairments do not total 20 points or more under the Impairment Tables  – decision under review affirmed

LEGISLATION

Social Security Act 1994 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 63(2), 80, 118(13)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Member

24 July 2017

1. On 31 December 2015 Ms James Ryan, who is now 64 years old, lodged a claim for Disability Support Pension (DSP) under the Social Security Act 1991 (the Act).

2. The 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 Act. In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 12 October 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Ms James Ryan’s claim. The AAT1 found that her medical conditions warranted a total rating of 0 points under the Impairment Tables and, therefore, she did not satisfy s 94(1)(b) of the Act.

4. In this proceeding Ms James Ryan seeks review of the AAT1 decision.

5. At the hearing Ms James Ryan was self-represented.

   ISSUES

6. In order to qualify for DSP Ms James Ryan 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 subclause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 31 December 2015 and 31 March 2016 (the claim period).

7. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

   ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

8. The Respondent concedes, and the Tribunal accepts, that Ms James Ryan suffers several medical conditions that cause impairment and, therefore, satisfied section 94(1)(a) of the Act.

9. For present purposes, the relevant medical conditions include low back pain, Meniere’s disease, asthma, a heart condition, hypertension, psoriasis, irritable bowel syndrome, diverticular disease and hiatus hernia. 

10. 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)).

11. 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, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

12. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”

13. Also, the Introduction to Table 11 of the Impairment Determination, which is to be used “where the person has a permanent condition resulting in functional impairment when performing activities involving hearing (communication) function or other functions of the ear (e.g. balance)” states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear Nose and Throat (ENT) specialist.”

14. The Respondent contends that, during the claim period, Ms James Ryan’s impairment was not 20 points or more and therefore she did not satisfy section 94(1)(b) of the Act.

15. It follows, that the first issue to consider is whether, during the claim period, Ms James Ryan’s impairment was 20 points or more under the Impairment Tables and, if so, whether she had “a continuing inability to work”.

16. If the Tribunal finds that, during the claim period, Ms James Ryan’s impairments were rated 20 points or more under the Impairment Tables the Respondent contends that she did not have a continuing inability to work and, therefore, did not satisfy section 94(1)(c) of the Act.

17. Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a program of support  within the meaning of subsection (3C)”. 

18. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is “20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.”

19. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) provides, inter alia, that a person has actively participated in a program of support (POS) if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

20. There is no dispute that Ms James Ryan had failed to meet the POS requirements, therefore her claim for DSP could only succeed if she suffered a severe impairment during the claim period, that is, if she had a rating of 20 points or more under a single Impairment Table.

    Table 4 - Spinal Function – chronic low back pain

21. Ms James Ryan told the Tribunal that her chronic back pain is the condition which has the most functional impact on her activities. She said that has suffered chronic low back pain since an injury at work in 1985 and has not worked since 1986.

22. Ms James Ryan claims she suffers some restriction with most physical activities involving spinal function most of the time but also experiences intermittent episodes of severe pain and increased functional impairment. These episodes can last for days to weeks.

23. The report of an MRI of the lumbar spine performed on 30 October 2008 is reported as showing “Multilevel lumbar degenerative facet arthropathy and disc degeneration, most pronounced at L4/5 where there is a focal left subarticular disc protrusion, which produces posterior displacement of the L5 nerve root in its lateral recess”.

24. Ms James Ryan’s application for DSP was supported by an undated Centrelink Medical Report provided by her current general practitioner (GP), Dr Zhao.

25. In the report, Dr Zhao  listed “Low Back pain  disc dysfunction + L4/ 5 spondylosis” as a medical condition that had a significant impact on Ms James Ryan’s ability to function and noted clinical features such as as “chronic low back pain radiating to bilateral low leg & feet …difficulty of walk [sic] at times”.  

26. Dr Zhao described the impact of this condition on the applicant’s  ability to function as “ need 24 hour support in daily living when LBP flares” but provided no other relevant details.

27. In a letter dated 13 June 2017 Dr Zhao stated, inter alia, the following:

    Sharon James Ryan has a medical condition of chronic low back pain which lasted for many years before I started to see her on18/06/2014. She first saw me with the same condition on 04/04/2016 when she complains about flare of low back pain (LBP).There was no history of injury and she stated that the LBP has always been there since the injury in 1985…I did advised to take regular analgesics and physiotherapy. She also received course of acupouncture [sic] with reasonable partial improvement.

    Consideration

28. The medical evidence with respect to “chronic low back pain” can, in my view, best be described as limited and incomplete.

29. Ms James Ryan has suffered from low back for many years and appears to have had reasonable treatment, therefore, I am satisfied that the condition can be considered permanent for the purposes of the Impairment Determination during the claim period.

30. Ms James Ryan’s self-report of symptoms suggests a mild to moderate functional impact on activities involving spinal function with episodic and temporary severe impact.

31. The difficulty for Ms James Ryan is that the only contemporaneous corroborating evidence, which has been provided by Dr Zhao, does not, in my view, provide a reliable assessment of the functional impact on activities involving spinal function during the claim period.

32. Therefore, a rating under Impairment Table 4 cannot be assigned.

    Table 11  – Hearing and other Functions of the Ear – Meniere’s disease.

33. Ms James Ryan told the Tribunal that her Meniere’s disease was first diagnosed in 2000 by her then GP.  She claims that she suffers “attacks” with dizziness and vomiting about every eight weeks and also intermittent dizziness between these attacks. She said she is unable to be take antiemetic medication because of allergies.

34. In Dr Zhao’s undated report “Meniere’s disease” is listed as the medical condition with the most functional impact on Ms James Ryan’s ability to function.

35. Dr Zhao noted clinical features such as “Tinnitus and vertigo, hearing impairment for a few years” and treatment as symptomatic.  Dr Zhao described the impact on ability to function  as “needs 24 hours care for daily living when Meniere’s flares” but provides no other relevant details.

36. Dr Zhao also noted that the diagnosis was not supported by further specialist opinion.

37. There is no evidence before the Tribunal , prior to the date of claim or during the claim period, that the diagnosis of the Meniere’s disease was supported by evidence from an audiologist or an ENT specialist. Therefore, in accordance with the requirements of Impairment Table 11 the condition cannot be considered to have been fully diagnosed at that time and cannot be considered permanent for the purposes of the Impairment Determination.

38. Furthermore, even if I were to accept that, during the claim period, the Meniere’s disease was permanent for the purposes of the Impairment Determination there is insufficient corroborating evidence to allow for a reliable assessment of the functional impact of this condition at that time.

39. It follows that a rating under Impairment Table 11 cannot be assigned.

    Table 1- Functions requiring Physical Exertion and Stamina - Heart condition and Hypertension 

40. Ms James Ryan told the Tribunal that in 1997 she suffered a “cardiac arrest” following a surgical procedure and that since 1980 she has suffered persistent intermittent palpitations. She also said that she suffers from intermittent chest pain and breathlessness on exertion.

41. The report of an echocardiogram performed on 13 October 2009 revealed, inter alia, a normal size left ventricle with normal function, ejection fraction 59%, a normal size right ventricle with normal function, a mildly dilated left atrium, mild mitral and tricuspid regurgitation mild to moderate pulmonary hypertension.

42. In a report dated 17 November 2009 Dr Carey, Cardiologist, noted a list of problems which included “cardiac arrest 28 years ago secondary to septicaemia, longstanding palpitations…, negative exercise stress echo and frequent ventricular ectopy on Holter 2008.”

43. Dr Carey stated, inter alia, the following:

    Sharon has recently been in Redcliffe Hospital with an episode of pneumonia. She required some IV antibiotics and since then has had a bit of flare up in her palpitations. Her Holter shows ongoing frequent ventricular ectopy with infrequent supraventricular ectopy … Her echo shows continued normal LV function. I have encouraged her to trial the Bicor on a prn basis if she is particularly symptomatic. It is likely however the palpitations will settle as her body settles down further after the pneumonia.

44. In a letter dated 8 February 2017 Dr Diu, Cardiologist, noted, inter alia, the following:

    Palpitations since 1980s, frequent ventricular ectopic beats on Holter 2008. . . Echo August 2015 – normal size LV, normal systolic function EF 65%. Borderline dilated left atrium...BP is usually low.

    I saw Mrs James Ryan today. She has had palpitations, likely related to frequent ectopic beats, which is unchanged…She has had central chest discomfort on occasions when she goes for a short walk for 15 minutes. She has had exertional dyspnoea which is unchanged… Blood pressure today was 145/79 with regular heart rate of 68…She had no signs of heart failure…ECG today showed sinus rhythm…

    Mrs James Ryan has continued to have some palpitations from ectopic beats and has had atypical chest pain and dyspnoea…We have elected to just observe her for now. A 24 hour Holter study and an echocardiogram were arranged. Low dose Sotalol 40 mg bd may be tried if necessary. I plan to see her again in 6 to 9 months.

45. The report of a 22 hour Holter ECG monitoring performed on 28 February 2017 noted a few ventricular ectopics, some runs of trigeminy, a few single atrial ectopics and otherwise sinus rhythm with an average rate of 68 per minute.

46. The report of a transthoracic echocardiogram performed 3 March 2017 noted a normal size left ventricle, normal size right ventricle, normal size right atrium, trivial mitral incompetence, a mildly dilated left atrium and unexplained mild pulmonary hypertension associated with mild tricuspid regurgitation.  

47. With respect to the claimed condition of “hypertension” there is no evidence before the Tribunal that, during the claim period, Ms James Ryans suffered from or was treated for this condition.

48. In his letter of 13 February 2017 Dr Diu noted that “BP is usually low” and that currently she is not on any antihypertensive medication as previously attempted treatment had caused “hypotension with presyncope”. He also recorded a single office based blood pressure that would be considered to be in the normal range.

    Consideration

49. The medical evidence before the Tribunal, in my view, demonstrates that Ms James Ryan’s heart condition has remained essentially unchanged since 2009. Over the eight-year period symptoms have not changed, she has essentially had no effective treatment and the objective cardiac investigations have also not changed.

50. I am satisfied that, during the claim period, Ms James Ryan’s heart condition can be considered as permanent for the purposes of the Impairment Determination.

51. The issue as to the impact on Ms James Ryan’s heart condition on functions requiring physical exertion and stamina is, in my view, problematic.

52. Ms James Ryan’s self- report of symptoms suggests a mild to moderate impact. However, there is essentially no corroborating evidence to support an assessment of Ms James Ryan’s impairment during the claim period.

53. However, on consideration of the objective medical evidence I am satisfied that, during the claim period, it is very likely that Ms James Ryan’s heart condition had a mild functional impact on activities requiring physical exertion or stamina and, therefore, a rating of 5 points under Impairment Table 1 one can be assigned.

    Other medical conditions

54. In Dr Zhao’s undated report “psoriasis” is listed as a medical condition that was generally well managed and that causes minimal or limited impact with no other relevant details provided.

55. In a letter dated 21 January 2014 Dr Gillespie, Dermatologist, noted that Ms James Ryan had suffered from a skin rash intermittently since 2000 and on “this occasion commenced before Christmas and has settled somewhat with Prednisone treatment.”

56. On examination, Dr Gillespie noted a “papular eczema/ urticarial dermatitis” and stated that the cause of this type of “dermatitis” is unknown but usually responds well to Prednisone. 

57. There is no other medical evidence with respect of Ms James Ryan’s skin condition before the Tribunal and, in my view, there is insufficient evidence for an assessment under the Impairment Determination during the claim period.

58. In Dr Zhao’s undated report “hiatus hernia, irritable bowel syndrome, diverticulitis” are listed as medical conditions that are generally well managed and that cause minimal or limited impact with no other relevant details provided.

59. I am satisfied that there is insufficient evidence before the Tribunal with respect to the   three conditions noted above to allow for an assessment under the Impairment Determination during the claim period.

60. Ms James Ryan told the Tribunal that she has suffered from “asthma” for many years and that her current treatment is the Ventolin puffer as needed, generally about once per week.

61. In Dr Zhao’s undated report there is no mention of “asthma”

62. In a Medical Certificate dated 19 September 2016, almost six months after the end of the claim period, Dr Zhao listed asthma as a permanent medical condition which has an impact on Ms James Ryan’s capacity to work or study.

63. Dr Zhao noted Ms James Ryan’s current symptoms were “cough with SOB at times” and described past, current and planned treatment as “bronchodilator and prednisone”.

64. The corroborating evidence with regard to Ms James Ryan’s condition of “asthma” can best be described as very limited, however, I am satisfied that the condition can be considered as permanent for the purposes of the Impairment Determination.

65. However, in my view, there is insufficient evidence before the Tribunal to allow for an assessment under the Impairment Tables during the claim period.

    DECISION

66. For the reasons set out above, the Tribunal is satisfied that, during the claim period, Ms James Ryan’s impairment was not 20 points or more under the Impairment Tables and, therefore, she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

67. Therefore, it is not necessary for the Tribunal to consider whether, during the claim period, Ms James Ryan had a “continuing inability to work”.

68. The decision under review is affirmed.

I certify that the preceding 68 paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 22 August 2017

Date(s) of hearing:	1 August 2017
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services