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

[2016] AATA 153

Thomas and Secretary, Department of Social Services (Social services second review) [2016] AATA 153 (15 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1984
Re	Valerie Thomas
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	15 March 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – whether impairment is 20 points or more under the impairment tables – whether there is a “continuing inability to work”  

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

Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

15 March 2016

1. On 12 August 2014 Ms Thomas, who is currently 52 years old, lodged a claim for Disability Support Pension (DSP) on the basis that she suffered several medical conditions which were having an impact on her ability to function.

2. Ms Thomas’ 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 Social Security Act 1991 (Cth) (“the Act”) because her impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 27 March 2015 the former Social Security Appeals Tribunal (“SSAT”) found that Ms Thomas had a total impairment rating of 15 points under the Impairment Tables with 5 points under Table 1 (Functions requiring Physical Exertion and Stamina), 5 points under Table 2 (Upper Limb Function) and 5 points under Table 5 (Mental Health Function) so that she did not satisfy the requirements of s 94(1)(b) of the the Act and did not qualify for DSP.

4. In these proceedings Ms Thomas seeks review of the SSAT decision.

5. As Ms Thomas was unable to attend the listed hearing the parties agreed that the Tribunal make the decision on the papers alone.

   ISSUES

6. In order to qualify for DSP, Ms Thomas 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 the requirements of the Social Security (Administration) Act 1999, that is, between 12 August 2014 and 11 November 2014 (“the claim period”).

7. Section 94(1) of 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)the person has a continuing inability to work as defined by the Act.

8. The Respondent concedes and the Tribunal accepts that Ms Thomas suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

9. 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)).

10. 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 to persist for more than two years (paragraph 6(4)(d)).

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

12. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, 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 a psychiatrist)”.

13. Ms Thomas suffers several medical conditions which include a mental health condition, an upper limb condition, a lower limb condition, a respiratory condition, diabetes mellitus, a spine condition, hypertension, hypercholesterolemia, and tinnitus.  

14. The Respondent contends that, during the claim period, Ms Thomas had a total impairment rating of 5 points under Impairment Table 5 so that she did not satisfy section 94(1)(b) of the Act.

15. The Respondent also contends that even if Ms Thomas, during the claim period, was able to satisfy section 94(1)(b), she did not satisfy section 94(1)(c) of the Act as she did not have a ‘continuing inability to work’. This is because she did not have a severe impairment as defined in s 94(3B) of the Act and had not actively participated in a program of support (POS) as required by s 94(2)(aa) of the Act.

16. The Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 provides that a person has actively participated in a POS if they have participated in a POS for 18 months during the 36 months prior to the date of claim.

17. Centrelink records indicate that between 13 March 2012 and 12 August 2014 Ms Thomas participated in a POS for about 13.5 months.

18. Accordingly, the definitive issues for the Tribunal to consider are whether during the claim period, Ms Thomas’ impairment was 20 points or more under the Impairment Tables and, if so, whether she had a “continuing inability to work”.

    Mental Health Function

19. In a brief letter dated 30 July 2013 Dr Ganda, clinical psychologist, notes that he had been treating Ms Thomas since November 2012 for symptoms of anxiety and depression and states that:

    On the basis of the clinical interview, clinical history and clinical observation and test findings it can be concluded that Ms Thomas suffers from Post-traumatic Stress Disorder with symptoms of Moderate Anxiety and Severe Depression. She also suffers from Pain Disorder as per DSM-IV.

20. He notes that she has been compliant in her sessions and has shown a keen interest in improving her condition.

21. In a Centrelink Medical Report dated 8 August 2014 Dr Shahri, GP, lists “Anxiety/ Depression” as a medical condition with most functional impact, notes current treatment as “Lovan 20mg” commenced on 1 July 2014, future planned treatment as “CBT, psychiatrist R/V” and describes impact on ability to function as “affects her cognitive function, regularly needs reminder”.

22. Past treatment is described as Endep commenced in 2013 and Cymbalta commenced in February 2014 for a period of 4 months.

23. In an attachment to a Centrelink Medical Report dated 5 November 2014 Dr Shahri lists “Depression/Anxiety” as a diagnosis, notes planned treatment as “psychiatrist’ and states that the condition “affects her ability on daily activities in terms of concentration, decision making, memory loss, interpersonal relation [sic]”.

24. In a letter dated 13 November 2014, Ms Ogawa, registered psychologist, notes that Ms Thomas was seen on four occasions between 9 October 2014 and 12 November 2014, presented with symptoms of depression, stress and anxiety and was being treated with Cognitive Behaviour Therapy and was booked for on-going sessions.

25. In a letter dated 16 June 2015 Dr Ganda notes that during the session on 9 December 2014 Ms Thomas reported “many developments” since the last session and describes various medical and domestic issues that have caused Ms Thomas significant stress. Dr Ganda states that Ms Thomas needs “long term psychotherapy and should continue with antidepressants”.

26. Dr Ganda goes on to describe Ms Thomas’ status during the session on 14 April 2015 and notes inter alia the following:

    Valerie has not been coping well. She has been forgetful. If she goes for shopping she often forgets to get the right things. As a result she prefers going with her husband… Her confidence level has been low… She often gets upset and angry with people and does not feel comfortable to handle confrontation… Valerie has been snappier with her family and intolerant of things she could handle in the past….

27. The SSAT states the following:

    Mrs Thomas is able to look after herself. She has some social contacts and recreational activities. There is no evidence to suggest that she is unable to travel alone to unfamiliar places. Mrs Thomas has difficulty concentrating and focussing upon complex tasks for very long. She has some difficulty with interpersonal relationships… the tribunal found that there is mild interference with activities involving mental health function and assigned an impairment rating of five points from Table 5.

28. The medical evidence before the Tribunal with respect to Ms Thomas’ mental health condition, during the claim period, can best be described as somewhat limited and tends to support a conclusion that the condition was not fully treated and fully stabilised.

29. However, for present purposes I accept that, during the claim period, the mental health condition was permanent for the purposes of the Impairment Determination.

30. On due consideration of the limited evidence and the descriptors in Impairment Table 5, I am satisfied that during the claim period there was a mild impact on activities involving mental health function so that a rating of 5 points can be applied.

    Upper Limb Function

31. An X-ray of the right shoulder performed on 27 August 2010 is reported as showing an “old healed ununited fracture of the distal two-thirds of the clavicle with slight overlapping of the fracture fragments”.

32. A bilateral shoulder ultrasound performed on 8 July 2014 is reported as showing “bilateral subacromial bursitis” but no evidence of tendinopathy and intact rotator cuff tendons.

33. In the report of 8 August 2014 Dr Shahri lists “left shoulder bursitis” as a condition that is generally well managed and causes minimal or limited impact.

34. In an attachment to a Centrelink Medical Report dated 5 November 2014 Dr Shahri notes a diagnosis of “(L) shoulder bursitis, non-union clavicular fracture (Rt)” with current symptoms of “pain, limitation in movement” and functional impact as “affects her daily activity including lifting, carrying”.

35. In a Job Capacity Assessment (JCA) Report submitted on 12 September 2014 the assessor notes that “the client’s condition contributes to right shoulder pain which impacts her range of movement, grip strength, manual handling capacity and task endurance”.

36. The SSAT notes inter alia the following:

    Mrs Thomas is right handed. She has a lot of pain in the shoulder. It is not easy for her to take a shower and wash her hair. Mrs Thomas is able to dress herself… steers clear of having clothes with buttons because it is difficult for her to do them up… is able to use utensils for eating… cannot write for long periods… finds it hard to handle coins and is often aware of an abnormal grasping sensation in her shoulder… cannot carry a heavy shopping bag… she is able to use her mobile phone to send messages  finds it difficult to unscrew a bottle of lemonade or open a jar of jam.

37. In my view, the medical evidence in respect of Ms Thomas’ upper limb condition is somewhat incomplete; however, I accept that, during the claim period, the condition was permanent for the purposes of the Impairment Determination.

38. The corroborative evidence with respect to functional impact is also somewhat limited and largely based on Ms Thomas’ self-reported impairment.

39. The most helpful evidence is Ms Thomas’ reported impairment as noted by the SSAT.

40. Notwithstanding the deficiencies in the evidence, and after due consideration of all the evidence before the Tribunal and the descriptors in Impairment Table 2, I am satisfied that, during the claim period, Ms Thomas suffered mild impact on activities using hands or arms so that a rating of 5 points can be applied.

41. In my view, there is insufficient corroborative evidence to support a conclusion that there was a moderate functional impact on activities using hands and arms.

    Lower Limb Function

42. In the report of 8 August 2014 Dr Shahri lists “osteoarthritis of knee” as a medical condition that is generally well managed and causes minimal or limited impact but provides no other details.

43. An X-ray of both hips and pelvis performed on 4 October 2014 is reported as showing “minor changes of osteoarthritis in both hips with marginal osteophytes…”

44. A bilateral hip ultrasound performed on 21 October 2014 is reported as showing “full thickness tear in the right gluteus medius tendon. Tendinitis of the gluteus medius and minimus bilaterally. Greater trochanteric bursitis” and a comment that “The patient may benefit from a CT guided steroid injection’.

45. On  28 October 2014 a right greater trochanteric bursal injection was performed.

46. In the report of 5 November 2014, Dr Shahri lists “Rt side hip bursitis with full tickness (sic) tear and tendinitis of gluteus and bilateral hip osteoarthritis” as a condition with significant functional impact; notes current treatment as “Panadol Osteo, Corticosteroid injection 28/10/2014”, planned treatment as “physiotherapy, specialist R/V” and describes functional impact as “affects movement in terms walking, standing and lifting”.

47. Dr Shahri provides no follow-up comment with respect to the effects of the steroid injection.

48. Clearly the hip condition was diagnosed during the claim period but I am not persuaded that the condition was fully treated and fully stabilised during that period. Therefore, a rating under Impairment Table 3 cannot be applied.

    Respiratory Function

49. In the report of 8 August 2014 Dr Shahri lists asthma and sleep apnoea as medical conditions that are generally well managed and that cause minimal or limited impact but provides no other details.

50. In the report of 5 November 2014 Dr Shahri lists “moderate sleep apnoea” as a medical condition with significant impact, notes current treatment as “await for CPAP”, future treatment as “on waiting to get CPAP R/V by Dr Mohan” and describes functional impact as “affect her daily function, concentration and problem solving”. There is no mention of asthma in this report.

51. The SSAT noted inter alia the following:

    Mrs Thomas uses a CPAP machine for sleep apnoea every night… Mrs Thomas’ asthma causes her to have a persistent cough. She uses her Ventolin puffer as necessary. When walking, she soon has a feeling that her lungs are scratching and becomes short of breath… With regard to shopping… she becomes short of breath whilst collecting her item and has to stop for a rest… Mrs Thomas tries to avoid using stairs because of her breathlessness.

52. I accept that, during the claim period, Ms Thomas’ asthma and sleep apnoea were diagnosed, however, I am not satisfied that the conditions were fully treated and stabilised at that time.

53. The medical evidence with respect to these conditions is, in my view, significantly deficient. Firstly, it is not clear in the documents when her treatment with CPAP actually started and in the report of 5 November 2014 Dr Shahri appears to suggest that Ms Thomas was “awaiting” to start the treatment. Of more concern, however, is the apparent inconsistency between the breathing difficulty reported by Ms Thomas to the SSAT and the relatively minimal treatment for her asthma, which would, in my view, suggest that the asthma is not fully treated and fully stabilised.

54. It follows that I am not satisfied that, during the claim period, Ms Thomas’ respiratory conditions were fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.

    Diabetes Mellitus

55. The SSAT noted inter alia the following:

    Mrs Thomas told the tribunal that her diabetes was diagnosed in 2010. She takes Diabex and another tablet and injects herself with insulin once a day. She sometimes forgets to do this… Mrs Thomas has not required hospital admission for diabetes and has not seen a diabetic specialist …..checks the blood sugar level with a machine on most mornings… does not know about hypoglycaemia... is not aware of specific symptoms caused by the diabetes.

56. In the report of 8 August 2014 Dr Shahri lists “poor control diabetes” as a medical condition with significant functional impact, notes current treatment as Diamicron, Januvia and lantus solostar” and describes impact on ability to function as “affecting cognitive function, at risk of complications.”

57. In the same report Dr Shahri lists diabetes mellitus as a medical condition that is generally well managed and causes minimal or limited impact.

58. In the report of 5 November 2014 Dr Shahri does not mention diabetes mellitus.

59. I accept that, during the claim period, Ms Thomas’ condition of diabetes mellitus was permanent for the purposes of the Impairment Determination.

60. However, I am satisfied that there is no corroborative evidence before the Tribunal to suggest that, during the claim period, Ms Thomas’ diabetes caused any significant functional impact so that the condition does not warrant any points under the Impairment Tables.

    Other Medical Conditions

61. The various medical documents before the Tribunal refer to a number of other medical conditions including umbilical hernia repair, duplex kidney left, tinnitus, hypertension, lumbar discopathy, sciatica, hypercholesterolemia, diverticulitis, uterine prolapse, knee osteoarthritis, mild and diabetic nephropathy.

62. I am satisfied that there is insufficient medical evidence before the Tribunal to determine whether, during the claim period, these conditions were fully treated and fully stabilised or whether there was any functional impact caused by these conditions so that a rating under the Impairment Tables cannot be applied.

    CONCLUSION

63. For reasons set out above I am satisfied that, during the claim period, Ms Thomas did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP. It is therefore not necessary to consider whether Ms Thomas had a continuing inability to work.

    DECISION

64. The decision under review is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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Associate

Dated 15 March 2016

Date(s) of hearing	18 February 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services