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

[2015] AATA 710

Smalldon and Secretary, Department of Social Services (Social services second review) [2015] AATA 710 (15 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0964
Re	Susan Smalldon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	15 September 2015
Place	Brisbane

The decision under review is affirmed.

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

Senior Member Bernard J McCabe

Catchwords

SOCIAL SECURITY – disability support pension – medical criteria - allocation of impairment points – applicant does not reach 20 points under one table – applicant did not actively participate in program of support

Legislation

Social Security Act 1991 (Cth), s 94

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

REASONS FOR DECISION

Senior Member Bernard J McCabe

15 September 2015

1. Susan Smalldon lodged a claim for the disability support pension (the DSP) on 24 September 2014. She referred to a number of conditions that she said made it impossible for her to work. The claim was rejected and Ms Smalldon ultimately applied to this Tribunal. I conducted a hearing on 31 July 2015. At the conclusion of that hearing I made findings of fact, and used s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) to remit the matter to the Secretary for reconsideration in accordance with my findings.

2. The Secretary reconsidered the matter as required under the terms of the remittal and proceeded to affirm the decision. That decision has now found its way back to the Tribunal. A resumed hearing was held on 7 September 2015 to discuss what was to be done.

3. After considering all of the material I have been provided, I have decided the decision under review should be affirmed. I explain my reasons below.

   The medical criteria

4. An applicant for the DSP must satisfy a number of criteria before her claim can be accepted. In this case, the Secretary says the difficulty arises out of the so-called medical criteria in s 94 of the Social Security Act 1991 (Cth) (the Act). The claim must be assessed against those criteria at the time the claim was made (that is on 24 September 2014) or in the 13 week period that followed. I must focus on the material that was known (or that was knowable) during that period.

5. The first requirement is set out in s 94(1)(a). That sub-section says the applicant must suffer from a physical, intellectual or psychiatric impairment. As I explained in my earlier reasons in relation to the s 42D remittal, I am satisfied Ms Smalldon does suffer from a number of medical impairments, namely:

   ·Depression;

   ·Fibromyalgia;

   ·Osteoarthritis and rheumatoid arthritis in various joints;

   ·Costochondritis;

   ·Temporomandibular joint pain, or TMJ.

6. At the resumed hearing, Ms Smalldon also referred to a knee condition that has emerged in recent times. There may be other conditions as well, but they are not clearly defined or articulated. Those conditions are not relevant for the purposes of this review.

7. The second requirement (set out in s 94(1)(b)) is that the person must have at least 20 points assigned 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 (the Determination). Impairment points cannot be allocated under the tables unless the condition is fully diagnosed, fully treated and fully stabilised: s 6 of the Determination. At the hearing before the remittal, the Secretary argued the depression condition was not fully diagnosed, while the fibromyalgia condition had not been fully treated and stabilised. The uncertainty over the impact of fibromyalgia complicated the assessment of the other conditions.

8. At the end of the first day of the hearing, I found as a fact that the depression condition was not fully diagnosed at the relevant time, and must therefore be set to one side. The problem was that I could not identify clear evidence from an appropriately qualified medical practitioner to justify a diagnosis of depression at that point. (I understand from Ms Smalldon that she has since seen mental health practitioners who are providing treatment for a depression condition – but that information cannot be taken into account for the purposes of the current review.) I also found the fibromyalgia condition was fully diagnosed, treated and stabilised. I directed that the Secretary proceed to make an assessment of her eligible conditions against the relevant impairment tables.

9. The Secretary commissioned a fresh report from the job capacity assessor. The assessor concluded the applicant should be allocated 10 points under table one, which considers the impact of a condition, or conditions, on the applicant’s physical exertion and stamina. The assessor allocated a further 10 points under table two, which deals with impact on the function of the applicant’s upper limbs. The reports were furnished by email dated 28 August 2015. They are extensive and reflect a careful consideration of the available medical evidence.

10. Ms Smalldon said the assessment was deficient in a number of respects. She said the impact of the fibromyalgia condition was not taken into account by the job capacity assessor. She said the condition was not well-understood in any event, and provided me with a number of documents she had downloaded from the internet.

11. I note the assessor explained (at p 11 of the report) that the assessment under table one had regard to “the global impact of chronic pain which impacts on daily activities rather than individual joint systems (as would be assessed using individual tables)”. That observation confirms the assessor did take into account the fibromyalgia condition, which is also known as chronic pain syndrome. I am also satisfied the assessor had regard to the appropriate medical evidence, most obviously Dr Zhao’s report of 21 March 2014 which recounted the applicant’s limitations in some detail. I would add the assessor’s conclusions are consistent with the evidence provided by the applicant at the hearing about her ability to walk around the shops and use public transport. That evidence does not justify the allocation of 20 impairment points. Ms Smalldon enlarged on her evidence in the course of the resumed hearing. She argued that while she was capable of doing the activities referred to in the table, she experienced debilitating pain in the days that followed. Unfortunately her experience in that regard is not properly documented and I am unable to rely on self-reports.

12. Ms Smalldon was also critical of the failure to refer to a discharge letter from the PA Hospital emergency department dated 22 October 2014. That letter noted Ms Smalldon reported significant pain in her lower limbs in particular when she attended the hospital for an appointment. The letter to her general practitioner noted the applicant had to travel on public transport for over two and a half hours to get to the hospital. The journey also required that she walk a significant distance.

13. Given the distance of travel involved on that occasion, it is hard to see how the letter adds anything to the report of Dr Zhao that was discussed by the assessor. Dr Zhao noted the applicant had trouble walking distances. That conclusion is consistent with what the tables describe as a moderately severe impairment, which results in an allocation of 10 impairment points.

14. I note the assessor thought it was appropriate to use table one when discussing the impact of chronic pain on the applicant’s mobility. That struck me as a reasonable professional judgment but I accept it would also be possible to assess the lower limb impairment against the descriptors in table three, which addresses lower limb function. I accept the applicant could be allocated a maximum of 10 points under that table given her evidence at the hearing about her mobility in shopping centres and on public transport. There is no basis for concluding she would be allocated 20 impairment points under table three.

15. The assessor also concluded the applicant was properly allocated 10 points under table two, which refers to the impact of her various conditions on upper limb function. I note Dr Zhao assessed her upper limb function as having a moderate impact; the assessor reached the same view. I was not made aware of any basis for reaching a different conclusion.

16. The assessor said the other conditions found to be fully diagnosed, treated and stabilised were properly dealt with under table one. The respondent reasoned they formed part of a constellation of systems that were exacerbated by fibromyalgia and collectively impacted on the applicant’s capacity for exertion and stamina. The individual conditions did not attract an impairment rating; it was their functional impact that was properly assessed. I agree that approach is appropriate.

    Does the applicant experience a continuing inability to work?

17. I am satisfied the applicant was properly allocated a total of 10 impairment points under table one and 10 points under table two. I accept it is possible to argue the applicant should have been awarded 10 points under table three, although it is unclear whether she would also have been allocated 10 points under table one in that event. If I take the most favourable view of the evidence, the applicant may have up to 10 points under each of three different impairment tables, although I am inclined to the view she should be allocated a maximum of 10 points under each of tables one and two.

18. That brings me to the requirement in s 94(1)(c) of the Act. That subsection says the applicant must experience a continuing inability to work. One component of that requirement is the program of support. An applicant for the DSP is ordinarily required to demonstrate that he or she has actively participated in a program of support for at least 18 months over the three years prior to the date of her claim. The applicant concedes she was enrolled in a program of support but she received medical exemptions that meant she was not actively participating for a full 18 months.

19. The program of support requirement is waived where the applicant is found to have a severe impairment – which means the applicant is allocated at least 20 points under just one impairment table. That is not the case here. A person might also be exited from the program if the Secretary is satisfied the program serves no purpose. It is also possible the Tribunal might waive the requirement even if the person has not been formally exited from the program where it is abundantly clear the applicant will not experience any benefit, or is obviously incapable of ever complying with the requirements of the program. There is insufficient evidence before me to reach that view in this case. 

20. The applicant is unable to satisfy the requirement in s 94(1)(c), at least in relation to her claim made in September 2014. That means the claim is unsuccessful.

    Conclusion

21. The decision to reject the claim for DSP that was lodged on 24 September 2014 must be affirmed. That decision does not affect the applicant’s ability to make a further claim, armed with additional evidence which was not available at the  relevant time, and which takes into account other conditions (like her depression) that were not able to be assessed in these proceedings.

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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

Associate

Dated 15 September 2015

Date of hearing	7 September 2015
Applicant	Susan Smalldon
Respondent	Secretary of the Department of Social Services