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

[2015] AATA 983

Ryan and Secretary, Department of Social Services (Social services second review) [2015] AATA 983 (17 December 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0236
Re	Michael Ryan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	17 December 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member McCabe

Catchwords

SOCIAL SECURITY – disability support pension – medical criteria – whether applicant’s impairments can be awarded 20 points – applicant unable to satisfy medical criteria – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

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

REASONS FOR DECISION

Senior Member McCabe

17 December 2015

Introduction

1. The applicant, Mr Michael Ryan, lodged a claim for the disability support pension (DSP) on 4 April 2013. His claim form referred to a number of medical conditions that he said resulted in significant impairment. Centrelink, acting on behalf of the Secretary, rejected the claim on 28 June 2013.

2. The claim has taken a long time to arrive at the Tribunal. The authorised review officer affirmed the decision on 17 February 2014, and the Social Security Appeals Tribunal (the SSAT) affirmed the decision on 10 June 2014. An application for review was lodged with this Tribunal on 15 January 2015. I understand the applicant says an application was lodged shortly after the SSAT decision but not recorded. The respondent in these proceedings, the Secretary of the Department of Social Services, did not make anything of the confusion over the filing dates.

3. The applicant says he is surprised and frustrated by the entire process, including the process before the Tribunal. He claims to have been misled at various points. He has asked for adjournments on account of his health. In particular, he asked that the hearing on 28 August 2015 be vacated so he would have time to obtain legal advice, prepare medical reports and collate a detailed response to the Secretary’s case outlined in the Statement of Facts, Issues and Contentions. He also referred to his psychiatric health. His treating psychiatrist, Dr Larder, supplied two letters setting out Mr Ryan’s history of mental illness. Dr Larder confirmed Mr Ryan remained unwell but the letters did not clearly say the applicant was unable to participate in the hearing. Mr Ryan claims he has been denied natural justice.

4. There were three preliminary conferences in relation to this matter. Mr Ryan has had access to the Secretary’s Statement of Facts, Issues and Contentions for over a month. While I am conscious he is facing challenges as a consequence of his mental health, I must also take into account the objectives set out in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). I would add the evidence from Dr Larder suggests to me the applicant will continue to suffer while these proceedings drag on. It seems likely that Mr Ryan will benefit if the proceedings can – subject to the requirements of fairness - be dealt with as quickly as possible given the lengthy delay he has already experienced.

5. Out of an abundance of caution, I allowed Mr Ryan an extra fourteen days to finalise written submissions that he said he had commenced. I told him I would deal with the case on the basis of those submissions, and the response of the Secretary, together with the evidence provided at the hearing. In the circumstances, I am satisfied Mr Ryan has been given ample opportunity to present his case and make submissions on relevant evidence.

   The legal framework

6. An applicant for the DSP must satisfy the so-called medical criteria in s 94(1) of the Social Security Act 1991 (Cth) (the Act). The relevant period to consider Mr Ryan’s eligibility is at the time of his claim, 4 April 2013, and in the 13 weeks thereafter, until 4 July 2013. Evidence that comes to hand after that period – including evidence which suggests the applicant’s health is deteriorating – is usually disregarded. Only evidence that was known or which was knowable during the period under review can be taken into consideration. (I note the applicant asked for additional time to obtain medical evidence from specialists with whom he had appointments after the date of the hearing. I formed the view it was unlikely that evidence would assist given the doctors in question would have to offer a view on what was happening to the applicant over two years ago. That evidence would in any event be considered alongside the evidence Mr Ryan provided at the hearing and at earlier points in the proceedings which, in my view, clearly confirmed he was not sufficiently impaired to attract at least 20 points under the impairment tables. I will have more to say about that below.)

7. The first criterion, in s 94(1)(a), is easily satisfied: it requires that Mr Ryan have a physical, intellectual or psychiatric impairment. The parties agree (and I accept) Mr Ryan suffers from:

   ·A lower limb impairment in the form of osteoarthritis of the right knee and both ankles and a meniscal tear in the right knee;

   ·An upper limb impairment in the form of osteoarthritis of both wrists;

   ·A spinal condition in the form of cervical and lumbar spondylosis with disc protrusions;

   ·Hypertension, which impaired the applicant’s ability to undertake physical work;

   ·Solar skin damage, which impaired the functioning of the skin; and

   ·Depression.

8. The Secretary concedes all of those conditions are fully diagnosed, fully treated and fully stabilised. That is important because the second criterion in s 94(1)(b) requires that the applicant be awarded at least 20 points under one or more of the impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Points cannot be awarded unless the applicant’s conditions are fully diagnosed, fully treated and fully stabilised.

9. How many points should be allocated in respect of the applicant’s various conditions? I should say at once that points are not allocated simply because a person is ill: the fact of illness is accepted. Points are allocated under each table to reflect the impact of the condition on the applicant’s functioning. That makes sense because I am trying to determine whether a person is incapable of working. To be allocated a particular number of points, there must be clear evidence – and not just evidence from the applicant himself – that answers the descriptors in the relevant table. I will deal with each of the claims in turn.

   The lower limb impairment

10. Mr Ryan suffers from a number of conditions that potentially impact on the functionality of his lower limbs. His functionality is assessed with reference to table 3, which deals with lower limb impairments. The Secretary noted reports from Doctors Costello, Ho and Safier that provide some insight into the applicant’s restrictions: none of them clearly suggest the applicant was seriously debilitated at the relevant time. Dr Safier, a general practitioner, suggested in his report dated 11 February 2014 that the applicant experienced “[r]educed tolerance of walking and prolonged standing” and “reduced ability to stand for long periods and walk long distances or walk briskly”. The Secretary also provided a job capacity assessment completed in 2013 and a self-assessment report dated 14 February 2014 which suggested the applicant experienced some difficulty climbing stairs, standing for more than 10 minutes, and walking around. The Secretary also pointed out the applicant gave evidence before the SSAT suggesting he was able to walk, use stairs without assistance and stand for more than five minutes. At the hearing before me, the applicant agreed he was able to drive and walk around a shopping centre.

11. This material clearly points to an impairment rating of 5 points, which is appropriate in the case of a mild functional impact. There was nothing in the applicant’s material received into the Tribunal on 18 September 2015 which suggests a different rating is appropriate.

    The upper limb impairment

12. The functional impact of the upper limb impairment is assessed having regard to table 2. Dr Safier suggested in his report dated 11 February 2014 that the applicant experienced reduced dexterity with the right hand and reduced capacity for repetitive action. Interestingly, the job capacity assessor noted (at exhibit one p 200) that the condition was worse in the left hand, while Mr Ryan was right-handed – whereas Mr Ryan told the SSAT his right hand was more affected. He also told the SSAT he was able to:

    ·carry heavier shopping with his left arm, and had no problems with coins, buttons or shoelaces;

    ·pick up a light but bulky object;

    ·write for about a half a page; and

    ·open a soft-drink bottle with his left hand. 

13. That evidence suggests to me the applicant fell short of experiencing a mild functional impact having regard to the descriptors in the relevant table. I accept he experienced some functional impact at the relevant time, but he did not satisfy the descriptors that would result in the allocation of 5 points. It was not appropriate to allocate Mr Ryan any points under that table at the relevant time.

    The spinal condition

14. The impact of the applicant’s cervical and lumbar spondylosis and disc protrusions are assessed with reference to table 4. The Secretary says the applicant should not be allocated any points under this table in respect of those conditions at the relevant time.

15. Mr Ryan described the impact of his spinal condition in his written submissions (at [45]). He said he was unable to undertake many functions (including turning his head and bending down) without strong pain relief. He also said his neck would “lock-up” when irritated by activity. He also said he might suddenly collapse when he experienced a knife-like pain in his lower back while walking. That evidence is difficult to reconcile with the evidence he gave to the SSAT. The SSAT recorded the applicant as saying he did not have too much trouble with his lower back, and that he could bend and straighten with some difficulty and turn his trunk from side to side.

16. While there is a good deal of medical evidence confirming the applicant has serious long term problems with his neck in particular, there is limited independent evidence actually describing the limitations he experienced at the relevant time. The Secretary pointed out an older report by Dr Hall dated 31 May 2011 (exhibit one at p 161), suggested the applicant had a full range of neck movement at that time. The Secretary conceded the reports certainly suggest the applicant’s condition is deteriorating but that no impairment points could be allocated.

17. I acknowledge the applicant’s evidence before the SSAT – which may be preferable to the subsequent evidence because it was given closer in time to the period under review – raises a question over whether the applicant should be allocated 5 points under table 4 given he has some difficulty bending and straightening, and is able to move his trunk. But the independent evidence required to corroborate his account is lacking. It is therefore inappropriate to allocate any points in the circumstances.

    The skin condition

18. The applicant’s skin condition is assessed with reference to table 14, which deals with functions of the skin. The applicant referred to the opinion of Dr Wiu, a skin specialist, who opined that Mr Ryan’s skin condition would have a “moderate impact on his work options”, especially if those work options are outdoors: exhibit one at p 235.

19. While Dr Wiu does refer to a moderate impact of the condition, there is nothing in her report or the additional material provided to the Tribunal that matches the descriptors in table 14 that would result in the allocation of 10 impairment points. The Secretary says 5 points is appropriate where the applicant experiences minor difficulties with activities involving exposure to the sun. I agree.

    Hypertension

20. Mr Ryan suffers from hypertension. He says he should be allocated points under table 1, which deals with conditions that impact on functions requiring physical exertion and stamina. The applicant says his blood pressure has gone up twice since 2013 which has required him to take stronger medication. Without that medication, he says his blood pressure would be dangerously high: submissions at [49]. But the medical evidence before me – I refer in particular to the evidence of Dr Costello dated 3 April 2013 – does not suggest the condition cannot be and was not controlled in the period under review. There is no evidentiary basis for allocating any points to the applicant under table 1.

    Mental health

21. The applicant suffers from depression. Dr Larder said Mr Ryan first experienced major depression in 1999 and he continues to experience symptoms. Dr Costello noted the applicant was suffering from anxiety. Mr Ryan said he regularly takes medication for depression and anxiety: submissions at [50]-[51].

22. While there is medical evidence confirming the applicant has been psychiatrically unwell over a long period, the evidence suggesting any significant functional impact during the period under review is lacking. It is difficult to reach a different conclusion to the one reached by the job capacity assessor in a report dated 16 April 2013. That report did not identify any functional impairment resulting from depression or anxiety. As a result, no points were allocated at the relevant time.

    General exhaustion

23. Mr Ryan also says he experiences chronic pain from his back and neck conditions. He says that pain in particular is debilitating, and therefore rateable under table 1. The Secretary says the impact of the neck and back conditions is dealt with under table 4 (albeit that Mr Ryan has not been allocated any points under that table). The Secretary says one cannot be assigned points in respect of the same functional impact under two different tables.

24. The applicant says it is not the spinal condition itself so much as the impact of medication and chronic pain which should be assessed under table 1. Even if I accept that distinction there is limited independent evidence – in particular, limited medical evidence – which would enable me to make an assessment of functional impact under table 1. The argument about chronic pain having an independent impact on the applicant’s functionality has not been made out.

    Conclusion

25. The evidence is in a poor state. There are a number of older medical reports and some more recent material that make it difficult to assess the impact of the applicant’s various health conditions on his functioning. His self-reporting certainly suggests he experiences significant difficulty, although it is unclear whether the difficulty was present at the relevant time. The applicant’s evidence recorded in the decision of the SSAT suggests his condition may have deteriorated in more recent times. There is, in any event, insufficient independent evidence to corroborate his self-reporting.

26. It is possible the applicant would be in a different position if his condition were assessed now. But I must deal with the evidence I have before me in relation to the period under review. I am unable to be satisfied he was entitled to 20 points or more at the relevant time under the impairment tables. He is therefore unable to satisfy the medical criteria in s 94(1) of the Act, and the decision under review must be affirmed.

27.     I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 17 December 2015

Date of hearing	28 August 2015
Applicant	Mr M Ryan (appeared by phone)
Solicitor for the Respondent	Ms K A McGree, Australian Government Solicitor