Abdulrahman and Secretary, Department of Families , Housing, Community Services and Indigenous Affairs
[2013] AATA 150
•20 March 2013
[2013] AATA 150
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1386
Re
Merwhen Abdulrahman
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 20 March 2013 Place Sydney Decision Summary
The decision under review is set aside and remitted to the Secretary under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration, after obtaining an opinion from the applicant’s treating psychiatrist or, if not practicable, another psychiatrist nominated by the Secretary about the following matters:
(i)The appropriate rating of the applicant’s major depressive disorder as measured under Table 6 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Sch 1B of the Social Security Act 1991 (Cth);
(ii)If the psychiatrist is of the opinion that an impairment rating of at least twenty should be assigned, whether the applicant has a continuing ability to work because of that impairment within the meaning of s 94(2), 92(3) and 93(5) of the Social Security Act1991 (Cth); and
(iii)If so, whether the impairment was/is of itself sufficient to prevent the applicant from undertaking a training activity during the period 16 September 2011 to 16 September 2013; and
(iv)If not, whether such activity is unlikely (because of the impairment) to enable the applicant to do any work independently of a program of support within the period 16 September 2011 to 16 September 2013.
The Secretary is to provide the expert with examples of, and details, about relevant “training activities” and “programs of support” to enable the above assessment to be properly made in relation to the applicant (see of s 94(2) and (3) of the Social Security Act 1991 (Cth)).
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY—Disability support pension—Major depressive disorder—Whether condition is fully diagnosed, treated and stabilised—Whether condition is permanent—Insufficient medical evidence—Decision remitted to the Secretary
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
Social Security Act 1991 (Cth) ss 92(3); 93(5); 94; sch 1BSocial Security (Administration) Act 1999 (Cth) s 42; sch 2
CASES
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
REASONS FOR DECISION
Senior Member A K Britton
20 March 2013
Mr Merwhen Abdulrahman has applied to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal, to reject his claim for disability support pension (DSP).
To qualify for DSP, Mr Abdulrahman must have a physical, intellectual or psychiatric impairment, and an impairment rating of at least 20 points, resulting in a continuing inability to work (s 94 of the Social Security Act 1991 (Cth) (the Act)). Impairment must be measured under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension, contained in Sch 1B of the Act (the Tables).
While no argument that Mr Abdulrahman suffers from a major depressive disorder, diabetes and back pain, the Secretary contends that none of these conditions can be assigned an impairment rating because they have not been “fully stabilised and treated” and furthermore are not permanent. In addition, the Secretary contends that Mr Abdulrahman does not qualify for the DSP because he does not have a “continuing inability to work”.
The question of whether Mr Abdulrahman qualifies for DSP must be assessed by reference to the 13-week period following the date he made his claim, that is, 16 September 2011 to 16 December 2011 (s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth)). In these reasons I will refer to this period as “the claim period”. Any change in Mr Abdulrahman’s health after this period is irrelevant, “... except insofar as it may cast light on the position at the relevant time”: Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 252 per Gyles J.
Medical evidence
When Mr Abdulrahman’s application was first listed for hearing in November 2012, I advised the parties of my opinion that the available medical evidence was of poor quality and drew to their attention the apparent discrepancy between the information recorded by GP, Dr Aiman Alsayed in the pro forma Centrelink medical report dated 16 September 2011 and the information he was said to have provided a Centrelink job capacity assessor six months later. In the former under the heading, “Future/planned treatment” Dr Alsayed wrote: “ref[erral] to psychiatrist”. The job capacity assessor on the other hand recorded that she was told by Dr Alsayed that Mr Abdulrahman had been referred to a psychiatrist in March 2011. With the consent of the parties I requested the Secretary to obtain further information from Dr Alsayed about the history of Mr Abdulrahman’s treatment for a major depressive disorder and invited both parties to submit further information. When the matter recommenced the parties provided two additional reports: a report prepared by Dr Alsayed, dated 12 March 2013, and a report prepared by Mr Abdulrahman’s treating psychologist, Mr Medhat Metry dated 6 March 2013.
CLAIMED CONDITION 1: MAJOR DEPRESSIVE DISORDER
Is Mr Abdulrahman’s depressive disorder a permanent condition?
The Secretary contends that Mr Abdulrahman’s depressive disorder has not been fully treated and stabilised and is not permanent.
Before an impairment rating can be awarded under the Tables the subject condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised” (Introduction to the Tables, par [4]). Once a condition has been diagnosed, treated and stabilised, for the purpose of the Tables it will be accepted as being permanent if, “in the light of available evidence, it is more likely than not that it will persist for the foreseeable future” that is, for more than two years (Introduction to the Tables, par [5]). The Tables go on to state that “a condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”(Introduction to the Tables, par [5]).
In determining whether a condition is fully diagnosed, treated and stabilised, the Tables instruct that it is necessary to consider (par [6]):
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be [par [6]]:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
…
Mr Abdulrahman has been in the care of psychologist, Mr Metry since June 2010. Reports prepared by Mr Metry (28 February 2012, 29 January 2013 and 6 March 2013) indicate that throughout this period, he has treated Mr Abdulrahman on a regular basis using cognitive behavioural therapy and despite this there has been no material change in his condition. Mr Metry in his most recent report wrote:
[Mr Abdulrahman] has a marked diminished interest in pleasure and activities of the day that formerly were enjoyable. He also reported difficulty in concentrating and has become forgetful. He further complained of increasing irritability. He complained of low self-esteem and hopelessness. He reported that he had become socially withdrawn and has reduced his social activities as well as his social contacts. He has disturbed sleep. He has no motivation or energy. He stated that he has experienced excessive worries and has had difficulty controlling these worries.
In her report of 20 March 2012, referred to above, the job capacity assessor set out the following details apparently obtained from a file review and speaking with Dr Alsayad: in 2010 Mr Abdulrahman was diagnosed as suffering from an adjustment disorder with depression; Mr Abdulrahman was referred again to a psychiatrist in March 2011 and prescribed Seroquel® (an antipsychotic used to treat major depressive disorders); four months later that dosage was increased and, in September 2011, Mr Abdulrahman’s dosage of Lexapro® (an antidepressant used to treat anxiety and major depressive disorder) was also increased. The assessor also recorded that Mr Abdulrahman was seeing a psychiatrist on a monthly basis and a psychologist on a fortnightly basis.
Mr Abdulrahman testified that his memory was poor. When questioned about whether the information concerning the history of his treatment recorded by the assessor was accurate,Mr Abdulrahman said it “sounded about right”. He said he could not remember the names of his treating psychiatrists but recalled receiving psychiatric care over the last couple of years. Mr Metry recorded in his most recent report that Mr Abdulrahman was under the care of psychiatrist, Professor Haider Maghaziji and previously, Dr Ali.
The Authorised Review Officer concluded in October 2011 that Mr Abdulrahman’s condition was fully treated but not fully stabilised because of “recent changes in Mr Abdulrahman’s pharmacological regime”. The SSAT disagreed and stated that the condition had not been fully treated but gave no reasons for that opinion. In these proceedings the Secretary contended that the condition was neither fully treated nor stabilised, pointing to: (i) Dr Alsayed’s stated opinion recorded in the report of 16 September 2011 that Mr Abdulrahman’s condition is likely to deteriorate within the next 24 months; and (ii) the evidence of some changes been made to Mr Abdulrahman’s prescribed medication, in early 2012.
By the commencement of the claim period, Mr Abdulrahman had been under the care of a psychologist for about 15 months, and under the care of a psychiatrist and taking anti-depressant medication for about six months. That treatment regime continues to this day. The reports prepared by Mr Metry reveal that despite this treatment there had been no material change in Mr Abdulrahman’s condition since the commencement of the claim period.
I cannot accept the submission made for the Secretary that changes to Mr Abdulrahman’s prescribed medication indicate that the condition was not fully treated in the claim period. There is nothing in the Introduction to the Tables to support the proposition that a condition can only be considered to be fully treated if no changes are made to the treatment regime. In my opinion the term “fully treated”, as used in the Introduction, is intended to convey that the person has received all reasonable available treatment at the relevant point in time, so as to indicate that as far as practicable, the condition has been stabilised (see at par [6]). It is a matter of common knowledge that in treating chronic conditions, adjustments to treatment is sometimes necessary, in response to, among other things, the progress of the condition and the patient’s circumstances. Whether such a change means that the condition could not be considered to be fully treated or stabilised during the claim period requires consideration of, among other things, the duration and type of the condition, the history of treatment provided, and the nature of, and reason for, the variation to the treatment.
In this case the changes made were an increase in the dosage of Lexapro® at the commencement of, or possibly shortly before, the claim period and a trial change to medication, shortly after the claim period. In my opinion these changes do not indicate that the condition was not fully treated. The increase in the dosage of Lexapro® has apparently been maintained; the trial variation to Mr Abdulrahman’s medication was quickly abandoned. Apart from that trial Mr Abdulrahman’s medication regime, established at the commencement of the claim period, apparently remains largely unchanged to this day. Coupled with the evidence of regular treatment by a psychiatrist and psychologist, I am satsified that during the claim period, Mr Abdulrahman’s condition was fully treated.
Nor can I accept the proposition that the references in the available material to some improvement in Mr Abdulrahman’s condition — Mr Metry’s comment in his letter of 16 August 2011 to the GP (“Mr Abdulrahman reported slight improvement”) and the clinical note of Professor Maghazji, (“[Mr Abdulrahman] looks younger today”) — indicate that in the claim period the condition had not fully stabilised, or that it was likely that there would be a significant functional improvement, over the ensuing two years. In my view it is a misreading of the Tables to interpret the criterion “fully stabilised” as requiring that the person’s symptoms must be static or remain unchanged. It is a matter of common knowledge that sufferers of chronic psychiatric conditions sometimes experience a variation in mood and symptoms. That they report, or present as, having “good days” does not necessarily mean that there is, or likely to be, significant functional improvement over the next two years. Whether this will be so, is a matter of fact and degree, to be determined on a case-by-case basis. Here the weight of evidence reveals that there has been no material change in Mr Abdulrahman’s condition since the commencement of the claim period.
As the Secretary correctly points out in the claim period Dr Alsayed was of the opinion that Mr Abdulrahman’s condition was expected to deteriorate over the next two years. The basis for that opinion is unknown but in any event the evidence indicates that 18 months after the claim period that concern was not occurred.
The available evidence indicates that throughout the claim period Mr Abdulrahman’s depressive disorder had been fully treated and stabilised and was likely to continue for a further two years. In my opinion in the claim period the condition was “permanent” for the purposes of the Tables.
Can a rating be assigned?
Having concluded that Mr Abdulrahman’s major depressive disorder is a permanent condition it is necessary to decide whether a rating can be assigned and, if so, the appropriate rating. The introduction to the relevant table, Table 6 states:
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained. [emphasis added]
Apart from the oral evidence given by Mr Abdulrahman the only available evidence to assist in rating the condition are the reports prepared by Mr Metry which state that his patient:
·Suffers from marked distress with impairment in his interpersonal, social, cognitive and occupational functioning;
·Has impaired mood, concentration and motivation;
·Is psychologically unfit for employment.
While that evidence might arguably support a rating of twenty points, in my opinion there is insufficient clinical information to rate Mr Abdulrahman’s condition. Notably there is no information about the opinion held by the treating psychiatrists, or the extent to which, if any, Mr Abdulrahman’s condition has reduced his functional capacity and made him unfit for work. In these circumstances I have decided that the preferable decision is for the decision to be remitted to the Secretary for determination, after obtaining an opinion from Mr Abdulrahman’s treating psychiatrist or, if not practicable, another psychiatrist nominated by the Secretary. I am somewhat reluctant to propose this course given that both parties were given an opportunity to obtain further material and despite the best efforts of the Secretary’s representative, it proved difficult to obtain information from Mr Abdulrahman’s GP. It is plain however that Mr Abdulrahman simply lacks the ability to obtain the necessary information and without that information it is not possible for an informed, and the best, decision to be made.
CLAIMED CONDITION 2: DIABETES
Is Mr Abdulrahman’s diabetes a permanent condition?
Mr Abdulrahman was diagnosed as suffering from, and had received some treatment (diet and medication) for, diabetes in the claim period. A job capacity assessor reported in September 2011 that at that time Mr Abdulrahman’s GP was of the opinion that further treatment, including review by an endocrinologist, was necessary. It follows that the condition could not be said to be fully treated or stabilised and therefore a rating cannot be assigned.
CLAIMED CONDITION 3: BACK PAIN
Mr Abdulrahman has been diagnosed as suffering from “back pain”. It would appear from the limited information available that the cause of that pain has not been identified. During the claim period Mr Abdulrahman took analgesics and had physiotherapy for his back condition. In proceedings before the SSAT, he testified that he had not followed a home exercise regime provided to him.
In my opinion the condition could not be said to have been fully investigated, treated or stabilised during the claim period. Therefore a rating under the Tables cannot be assigned.
SUMMARY
For the reasons given I have decided it is necessary to obtain an expert opinion about the appropriate rating to assign to Mr Abdulrahman’s psychiatric condition. For that reason I make the following orders:
The decision under review is set aside and remitted to the Secretary under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration, after obtaining an opinion from the applicant’s treating psychiatrist or, if not practicable, another psychiatrist nominated by the Secretary about the following matters:
(i)The appropriate rating of the applicant’s major depressive disorder as measured under Table 6 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Sch 1B of the Social Security Act 1991 (Cth);
(ii)If the psychiatrist is of the opinion that an impairment rating of at least twenty should be assigned, whether the applicant has a continuing ability to work because of that impairment within the meaning of s 94(2), 92(3) and 93(5) of the Social Security Act1991 (Cth); and
(iii)If so, whether the impairment was/is of itself sufficient to prevent the applicant from undertaking a training activity during the period 16 September 2011 to 16 September 2013; and
(iv)If not, whether such activity is unlikely (because of the impairment) to enable the applicant to do any work independently of a program of support within the period 16 September 2011 to 16 September 2013.
The Secretary is to provide the expert with examples of, and details, about relevant “training activities” and “programs of support” to enable the above assessment to be properly made in relation to the applicant (see of s 94(2) and (3) of the Social Security Act 1991 (Cth)).
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .................[SGD].......................................................
Associate to Senior Member Britton
Dated 20 March 2013
Date(s) of hearing 14 March 2013 Applicant In person Solicitors for the Respondent Program Litigation and Review Branch, DHS Legal Division
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