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

[2017] AATA 28

Smith and Secretary, Department of Social Services (Social services second review) [2017] AATA 28 (17 January 2017)

Division:General Division

File Number(s):       2016/2300

Re: Steven Smith

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:17 January 2017

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple medical conditions – whether medical conditions were fully diagnosed, treated and stabilised – whether applicant had impairment rating of at least 20 points – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

17 January 2017

INTRODUCTION

1. On 17 July 2015, Mr Steven Smith lodged a claim for the disability support pension.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Smith did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 8 April 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Smith did not satisfy s 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 3 May 2016, Mr Smith applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 13 December 2016. Mr Smith attended the hearing in person and was self-represented.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Smith must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 17 July 2015 and 16 October 2015 (the claim period).

8. The Respondent concedes and the Tribunal agrees that Mr Smith suffers medical conditions that cause impairment and therefore, he satisfied s 94(1)(a) of the Act at the time of his claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Mr Smith had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in s 94(2) of the Act.

   Does Mr Smith have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition ‘must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’.

14. Relying on the evidence before me, I consider that Mr Smith’s medical conditions for the purposes of his claim for the disability support pension are:

    ·mental health condition – anxiety, agoraphobia and panic attacks;

    ·spinal condition – back pain;

    ·epilepsy;

    ·vertigo; and

    ·other conditions including sleep apnoea, hyperlipidaemia and morbid obesity.

15. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Mental health condition

16. In a report dated 26 August 2015, Dr Warren Ling (General Practitioner) stated that Mr Smith has suffered from anxiety and panic attacks since 1995, although these conditions were not diagnosed until 2005. He further opined that the ‘symptoms of anxiety occur daily and are debilitating, preventing him from performing any normal work duties’ and are likely to persist for more than two years.[1] 

    [1] Exhibit T1 at T32, p 204.

17. Dr Youssef Malek (Consultant Psychiatrist) reported on 9 October 2009 that Mr Smith presented with symptoms of:

    anxiety and panic attacks, with fears of going out to shopping centres, escalators and heights. He stated that his symptoms have affected his ability to socialise with people and his ability to work … [and] have had a “devastating effect” on his life since they started in 1997.[2]

    [2] Exhibit T1 at T4, p 111.

18. A report by Dr Martin Baker (Clinical Psychologist) on 4 March 2010 concluded that many of Mr Smith’s anxiety symptoms ‘are situation / context specific … and [are] not consistent over time … which makes treating [him] psychologically even harder given this unpredictability.’[3]

    [3] Exhibit T1 at T5, p 115.

19. On 1 September 2015, during the relevant claim period, Mr Justin Court (Psychologist) reported that Mr Smith:

    presented with anxiety and depressive symptoms associated with domestic conflict and poor physical and mental health over a nine year period. He reported experiencing a cycle of ongoing rumination resulting in ongoing anxiety and Agoraphobia.[4]

    [4] Exhibit T1 at T33, p 205.

20. Mr Court stated that Mr Smith has undertaken treatment of psychological therapy and also accesses support services but his condition is ‘chronic in nature and his prognosis poor’. [5]

    [5] Exhibit T1 at T33, p 205.

21. At the Tribunal hearing, Mr Smith said that he attends the Mingaletta Aboriginal and Torres Strait Islander Corporation (Mingaletta) community centre three times a week to access a men’s group and support services. During the relevant claim period, he was living with his mother, although he now lives on his own. Mr Smith noted that, while he does not require care at home, he needs assistance when out in public. He said he undertakes no social activities apart from attending the Mingaletta community centre and speaking to his 10 year old son on the telephone in the evenings.

22. Mr Smith told the Tribunal that he is usually picked up and taken to the Mingaletta community centre but is able to take a bus independently to the community centre and to do his grocery shopping. He is also able to take a train independently; for example, he travelled by train from the Central Coast to Sydney for the Tribunal hearing and said that he has previously travelled to Victoria from the Central Coast by train to visit his son.

23. Mr Smith described his panic attacks as happening ‘multiple times a day’; he said that the symptoms are that he starts shaking, his vision becomes blurry and he gets dizzy. He said the panic attacks can be triggered by movement, such as walking or going up a lift, and ‘just come on’.

24. Based on the evidence before me, I am satisfied that Mr Smith’s mental health condition was fully diagnosed, treated and stabilised during the claim period. I have regard to the information at Table 5 – Mental Health Function of the Impairment Tables Determination and am satisfied that Mr Smith’s mental health condition has a mild functional impact on activities involving his mental health function and I assign an impairment rating of 5 points.

    Spinal condition

25. Dr Ling, in a medical report dated 26 August 2015, stated that Mr Smith had a seizure in 2013 that resulted in him falling and fracturing his lumber vertebrae. Mr Smith has experienced recurring pain since, which restricts his ability to sit or stand for extended periods. Dr Ling noted that the condition ‘is likely to persist but gradually improve over the next 2 years’.[6]

    [6] Exhibit T1 at T32, p 204,

26. A medical report for disability support pension review completed by Dr Youssef Nasralla (General Practitioner) on 18 June 2014 stated that Mr Smith had a back injury that had been treated with a back brace, pain killers and rest.[7]

    [7] Exhibit T1 at T24, pp 155-156.

27. A Job Capacity Assessment (JCA) Report dated 19 October 2015, which assessed Mr Smith in the relevant claim period, found the evidence indicated that there was a mild functional impact on activities involving spinal function.[8] A further JCA Report dated 21 January 2016 revised this assessment and noted that the:

    condition is considered permanent, but not fully treated and stabilised as Dr Ling has indicated the condition is expected to persist but gradually improve over the next 2 years. In addition, physiotherapy and secondary rehabilitation may benefit Mr Smith.[9]

    [8] Exhibit T1 at T34, p 210.

    [9] Exhibit T1 at T39, p 221.

28. Mr Smith told the Tribunal that he experiences constant pain in his back. However, he does not take pain medication and is able to undertake tasks around the house such as his laundry and preparing food. He is also able to carry his grocery shopping and travel on a bus. He no longer drives a car due to his panic attacks. He can only walk for five to ten minutes and cannot run.

29. Mr Smith had five physiotherapy sessions from about April 2016, approximately seven months after the relevant claim period. He told the Tribunal that these sessions were helpful but only alleviated his pain for about 30 minutes.

30. Based on the medical evidence before me, I am not satisfied that Mr Smith’s spinal condition was fully diagnosed, treated and stabilised during the claim period. As the condition was not permanent, I cannot assign an impairment rating in accordance with Table 4 – Spinal Function of the Impairment Tables Determination.

    Epilepsy

31. Dr SG Punchihewa (Consultant Neurologist) provided a number of reports about Mr Smith’s condition of epilepsy from April 2011 to August 2015. Dr Punchihewa stated that Mr Smith was diagnosed with epilepsy when he was eight months old and had multiple seizures when he was a child.[10] He had two ‘grand mal’ seizures in 2013 but otherwise, he has generalised epilepsy syndrome and his seizures are well controlled with medication. His neurological examination is normal.[11]

    [10] Exhibit T1 at T8, p 128.

    [11] Exhibit T1 at T8, T19, T21 and T22.

32. In a report dated 17 August 2015, which was during the relevant claim period, Dr Punchihewa stated that Mr Smith ‘has been well since he was last seen, almost 10 months ago. He has not had any seizures. He has been well with no significant neurological or medical concerns.’[12] Dr Punchihewa further stated that, as Mr Smith’s epilepsy is well controlled, he has not restricted him from driving.

    [12] Exhibit T1 at T31, p 203.

33. Based on the medical evidence, I am satisfied that Mr Smith’s epilepsy was fully diagnosed, treated and stabilised during the claim period. I have regard to the information in Table 15 – Functions of Consciousness of the Impairment Tables Determination and find that the evidence before me indicates that this condition has no functional impact on Mr Smith. I therefore assign an impairment rating of 0 points in accordance with the Impairment Tables Determination.

    Vertigo

34. In a report dated 26 August 2015, Dr Ling stated that Mr Smith has suffered from episodic vertigo symptoms on a daily basis since 2005.[13]

    [13] Exhibit T1 at T32, p 204.

35. Mr Smith told the Tribunal that he was seeing Dr Ling in relation to his vertigo. He was referred to have a vestibular function test in May 2016 but was unable to complete the test due to the onset of a panic attack. Subsequently, Dr Ling was intending to refer Mr Smith to another specialist but this had not yet occurred due to the associated cost.

36. Based on the evidence before me, I am not satisfied that Mr Smith’s condition was fully diagnosed, treated and stabilised during the claim period. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.

    Other conditions

37. Mr Smith reported other medical conditions including sleep apnoea, hyperlipidaemia and morbid obesity.[14]

    [14] Exhibit T1 at T30, p 186.

38. Dr D De Silver reported on 3 February 2012 that Mr Smith undertook a sleep study which showed he has mild obstructive sleep apnoea overall and severe sleep obstructive apnoea when in REM sleep. The report outlined recommended treatments including weight loss, avoidance of supine sleep positions, a mandibular advancement splint and trial of CPAP therapy.[15]

    [15] Exhibit T1 at T13, p 133.

39. Mr Smith told the Tribunal that he is seeking to lose weight to assist with his sleep apnoea and takes medication for his hyperlipidaemia.

40. Based on the medical evidence, I am satisfied that Mr Smith’s conditions of sleep apnoea, hyperlipidaemia and morbid obesity caused minimal impact on his ability to function in the relevant claim period and so I do not assign a rating for these conditions in accordance with the Impairment Tables Determination.

    CONCLUSION

41. For the reasons set out above, I am satisfied that Mr Smith did not meet the requirements of s 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables Determination.

42. As I find that Mr Smith did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

43. If Mr Smith’s circumstances change, he is entitled to submit a new application for the disability support pension at any time.

    DECISION

44. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 17 January 2017

Date(s) of hearing:	13 December 2016
Applicant:	In person
Solicitors for the Respondent:	B Salaji, Department of Human Services