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

[2018] AATA 975

Zhumabekov and Secretary, Department of Social Services (Social services second review) [2018] AATA 975 (24 April 2018)

Division:GENERAL DIVISION

File Number(s):2017/2250      

Re:Kairat Zhumabekov

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:24 April 2018

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – 20 points or more under the Impairment Tables – autoimmune condition – rheumatoid arthritis – other conditions – decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

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

REASONS FOR DECISION

Dr I Alexander, Member

24 April 2018

1. On 22 July 2016 Mr Zhumabekov, who is now 53 years old, lodged a claim for Disability Support Pension (DSP).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 24 March 2017, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Zhumabekov’s claim. The AAT1 found that his medical conditions warranted a total rating of 10 points under the Impairment Tables and, therefore, did not satisfy s 94(1)(b) of the Act.

4. Mr Zhumabekov, who was self-represented at the hearing, seeks review of the decision of the AAT1.

   ISSUES

5. In order to qualify for DSP Mr Zhumabekov 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 clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 22 July 2016 and 21 October 2016 (the qualification period).

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

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

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

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

7. The Respondent concedes, and the Tribunal accepts, that Mr Zhumabekov suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

8. 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)).

9. 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));

   ·fully treated (paragraph 6(4)(b));

   ·fully stabilised (paragraph 6(4)(c));

   ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

10. 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.”

11. Mr Zhumabekov contends that he suffers significant impairment as a result of medical conditions relevantly described as systemic scleroderma, inflammatory polyarthritis (rheumatoid arthritis) and hypertension.

12. The Respondent contends that, during the qualification period, Mr Zhumabekov’s medical conditions were not fully treated and fully stabilised and, therefore, could not be assessed under the Impairment Tables.

13. Therefore, the definitive issue in this matter is whether, during the qualification period, Mr Zhumabekov’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had “a continuing inability to work”.

    MR ZHUMABEKOV’S EVIDENCE  

14. Mr Zhumabekov told the Tribunal that he currently lives alone in a “granny flat”, is able to care for himself and attend to all domestic duties without assistance but does experience some difficulties because of his medical conditions.

15. In a letter, dated 3 May 2017, Mr Zhumabekov stated that his condition of systemic scleroderma, which was diagnosed in 1996 when he was living in Kazakhstan, is a “lifelong illness that cannot be fully treated” and that he has “had comprehensive medical treatments every year since 1996 and earlier”.

16. At the hearing Mr Zhumabekov explained that his baseline treatment for this condition has been oral penicillamine but that during his time in Kazakhstan he was also admitted to hospital about once a year for additional intensive treatment. He added that since 2013 he has been self-medicating with penicillamine that he brought from Kazakhstan and explained that he takes one tablet 2 to 3 times per week for one month, no tablets for 1 to 2 months and then repeats this cycle by monitoring the presence or absence of gastrointestinal bleeding.

17. With respect to hypertension, which was also diagnosed in Kazakhstan, Mr Zhumabekov explained that he self-medicates with intermittent oral Alfadil, a medication that has not been prescribed for him in Australia.

18. Mr Zhumabekov said that he takes the medication when he develops symptoms which he attributes to high blood pressure. These symptoms, which include “headache, red eyes and left sided upper thoracic back pain” occur about 2 to 3 times per month.

19. Mr Zhumabekov told the Tribunal that at his last consultation at the Liverpool Hospital Rheumatology clinic, on the 7 March 2018, he was given a prescription for regular treatment of his hypertension which, as yet, he has not had dispensed.

20. When asked by the Tribunal when he had his first consultation at the hospital clinic he was unable to recall a specific time but indicated that it was in late 2016.

21. In an email following the hearing Mr Zhumabekov confirmed that his first appointment at the Rheumatology clinic was on 17 November 2016, that is, about one month after the end of the qualification period.

22. With respect to the condition of arthritis Mr Zhumabekov explained that this condition affects mainly his hands and that during 2017 there was a significant deterioration in function. He added that his hand function has improved following a recent increase in the dose of his current methotrexate medication, which he now receives by injection.

23. Mr Zhumabekov provided the Tribunal with a copy of his Curriculum Vitae (CV) which showed that between 1996 and 2015 he successfully completed several academic qualifications including, in 2000, a Master’s degree in Economics at the Australian National University. Also, between 2001 and 2010 he was employed in several senior managerial positions in Kazakhstan.  

24. Centrelink records show that between November 1998 and 2015 Mr Zhumabekov was able to travel to and from Australia on 8 occasions and spent a considerable time outside Australia.

    MEDICAL EVIDENCE

25. The Tribunal was provided with several, relatively brief, translated medical certificates from Kazakhstan from 1995 to 2009.

26. A discharge notice dated 2009 confirms a diagnosis of “progressive scleroderma since 1994” with baseline therapy as “Cuprenil” (penicillamine).

27. The notice refers to “impairment of joints, the gastrointestinal tract and lungs, arterial hypertension of the 1^st degree, chronic pyelonephritis since 2002, Raynauds’ syndrome since 1985” but provides no other details. There is also a list of treatments and medications with no other details.

28. The other documents do not provide any other additional useful information.

29. In a letter to Mr Zhumabekov’s GP, dated 18 September 2014, Dr Marabani, rheumatologist, referred to 2 consultations and stated, inter alia, the following:

    …He was diagnosed in Kazakhstan with scleroderma. He gives a 20 year history of arthritis which has been managed with vitamins, physical therapies and some medication…..over the last five or six months he had increasing stiffness in his joints particularly affecting the hands. The duration of the stiffness is an hour or more. It makes it difficult for him to hold objects. He also has right lateral foot pain and some interscapular pain. From time to time he gets headaches. He has been aware of shin thickening on his hands and his lower limbs  …..When I examined him he was a well looking man. His blood pressure was very high at 160/110. He had patchy synovitis of the small joints of the hands and mild swelling of the right wrist……. The skin of the digits was shiny and there was mild tapering. There was excoriated skin with loss of pigment over the lateral aspect of his right lower leg.  It was not typical of psoriasis nor was it typical of scleroderma. I asked him to have some x-rays and blood tests and also to come back and see you to have his blood pressure checked but he decided not to have anything done …

    Today the examination was much the same as before and I note in particular the blood pressure of 180/110 ……the question is whether he has scleroderma alone or whether he has an overlap with rheumatoid arthritis ….he needs a full complement of bloods including CCP antibody to further assess this …..his blood pressure needs to be treated in view of the risk of scleroderma …..I have started him on 5 mg of Coversyl today although I am not confident that he will actually take it[1]

    [1] At the hearing Mr Zhumabekov confirmed that he did not fill the prescription.

30. In a Centrelink Medical Report dated 4 December 2014 Dr Elhafi, GP, lists “systemic scleroderma” as the medical condition with most impact, notes current treatment as “simple analgesics, NSAIDS, physiotherapy” and describes impact on ability to function “significant ↓ endurance” but provides no other relevant details.

31. In two medical certificates dated 6 January 2016 and 3 September 2016 Dr Elhafi states that Mr Zhumabekov suffers from rheumatoid arthritis and scleroderma and notes “condition is getting worse: weakness and wasting of muscle limited hand grip and strength restricted mobility”.

32. The Report of telephone conversation between Dr Elhafi and a Centrelink officer on 3 September 2016 noted the following:

    …..Dr Elhafi indicated that client has not undertaken appropriate treatment since 2014 when he was under the care of Dr Marabani and even then there were some issues with compliance to recommended treatment. Client then went back overseas to pursue treatment. Dr Elhafi indicated client needs to undertake a comprehensive assessment and treatment program. Client has been referred to hospital specialist …client has undertaken blood test which has indicators for Systemic scleromo [sic] but this has yet to be confirmed. Dr Elhafi indicated the client probably has the condition however at this stage it cannot be considered to be fully treated and stabilised. The client needs to commence appropriate treatment.

33. On 26 September 2016 Dr Elhafi provided a referral to Liverpool Hospital Rheumatology Outpatients and noted “thank you for seeing Mr Kairat Zhumabekov, 52 years, with Rheumatoid arthritis had diagnosis of systemic scleroderma overseas”.  

34. In a letter to Mr Zhumabekov’s GP, dated 9 March 2017,  Dr Oliffe, rheumatology registrar Liverpool Health Service , stated, inter alia, as follows:

    ….Kainat has an inflammatory polyarthritis …..He was previously diagnosed with scleroderma in Kazakhstan in 1996, which he states was based on skin biopsy. He describes a long history or arthralgia with some mild thickening of the skin on his fingers and face, trunk and legs. He describes dysphagia with food and underwent endoscopy in Kazakhstan but this has not been followed up since arriving in Australia. He describes Raynaud’s in cold weather. I note recent HRCT shows mild inflammatory change in the bases which possible reflects early interstitial lung disease. He is due for a follow up scan in 12 months…….  Since his last review in January this year, Kainit describes slow improvement in his arthritis. He reports minimal swelling and mild morning stiffness, which lasts 30 minutes. Joints involved include small joints of the hands and feet in a rheumatoid pattern……Blood tests from the 19^th January showed normal liver function, renal fiction FBC and normal inflammatory markers……On examination today Kanait looked well.   BP 160/90. There was mild tenderness of the MCP and PIP joints bilaterally ….wrists and elbows both moved well….shoulder elevation was preserved …..hips were non irritable and knee range of motion was preserved …..there was an erythematous skin rash on the lateral aspect o the right foot ……..I understand skin biopsy performed recently was consistent with dermatitis ……..[emphasis added]

35. In summary, Dr Oliffe stated that Mr Zhumabekov had an “inflammatory arthritis” with additional symptoms, that suggest an “overlap syndrome”[2] He added that the predominant current problem is “arthritis” and recommended continuation of the recently increased dose of weekly methotrexate. 

    [2] An overlap syndrome is an autoimmune disease of connective tissue in which a person presents with symptoms of two or more diseases.

36. Dr Oliffe also arranged specific urine examination because of Mr Zhumabekov’s elevated blood pressure and “possible underlying scleroderma”.

37. Dr Oliffe stated that he had ceased Mr Zhumabekov’s penicillamine because he was only taking it intermittently. At the hearing Mr Zhumabekov stated that he was, in fact, currently still self-medicating with penicillamine.

    CONSIDERATION

38. “Scleroderma is a rare multisystem autoimmune disease of the connective tissue distinguished by prominent fibrosis and vasculopathy of the skin and internal organs.” [3]

    [3] Editorial-Systemic sclerosis: Advances and Prospects, The Lancet, 7 October 2017.

39. Mr Zhumabekov claims that he has suffered from systemic scleroderma for over 20 years but for much of that time, according to his CV, he appears to have had no difficulty with international travel, has completed several academic qualifications and has been able to maintain substantial regular employment. 

40. Mr Zhumabekov claims that more recently his condition has deteriorated with increasing symptoms and functional impairment.

41. The difficulty for Mr Zhumabekov is that the medical evidence provided to the Tribunal, which can best be described as incomplete and somewhat limited, in my view, does not support a conclusion that his condition of systemic scleroderma has in fact significantly deteriorated.

42. It is not entirely clear from the single letters provided by Drs Marabani and Oliffe whether Mr Zhumabekov suffers from two separate conditions or one condition with overlapping symptoms. What is clear, however, is that both doctors suggest that the predominant problem causing his recent symptoms and impairment is untreated “inflammatory arthritis”. Neither doctor pays much attention to any symptoms and signs of the scleroderma and Dr Oliffe actually refers to “possible underlying scleroderma”.

43. Notwithstanding, the diagnostic complexity of Mr Zhumabekov’s medical conditions it is clear from the available evidence that in the three years prior to the qualification period, apart from his own regime of self-medication, Mr Zhumabekov has had no regular medical assessment or supervised treatment for any of his medical conditions.

44. I am satisfied that the available evidence leads to a conclusion that, during the claim period, all of Mr Zhumabekov’s medical conditions could not be considered to have been fully treated and stabilised which means that a rating under the Impairment Tables cannot be assigned. 

    DECISION

45. For the reasons set out above the Tribunal is satisfied that, during the qualification period, Mr Zhumabekov’s impairment was not 20 points or more under the Impairment Tables so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

46. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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Associate

Dated: 24 April 2018

Date(s) of hearing:	16 April 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services