Amer Trad and Secretary, Department of Social Services

[2014] AATA 655

[2014] AATA 655

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3326
Re	Amer Trad
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	9 September 2014
Place	Sydney

The reviewable decision is set aside and substituted with a decision that Mr Trad satisfied the requirements of section 94(1) of the Act during the claim period and was qualified to receive Disability Support Pension at the date of application.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – whether applicant had a continuing inability to work – decision set aside

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 Ion Alexander, Member

9 September 2014

BACKGROUND

1. On 12 September 2012 Mr Trad lodged a claim for Disability Support Pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function. The conditions as described in the claim form included “severe lumbar, depression and migraines”.

2. Mr Trad’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables in the relevant claim period.

3. In this proceeding Mr Trad seeks review of the decision of the SSAT.

4. Mr Trad attended the hearing alone. He was able to provide only limited oral evidence as he was clearly distressed and had obvious difficulty as a result of his mental health condition.

   ISSUES

5. In order to qualify for DSP Mr Trad had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 12 September 2012 and 12 December 2012.

6. It is agreed that Mr Trad suffers from a spinal condition and a mental health condition and that he therefore satisfies s 94(1)(a) of the Act.

7. The respondent concedes that, during the claim period, Mr Trad had a spinal condition that was permanent within the meaning of the Act but contends that he had an impairment rating of no greater than 10 points under Impairment Table 4.

8. I accept that the evidence before the Tribunal supports the respondent’s contention.

9. In the earlier reviews Mr Trad’s mental health condition was not accepted as being permanent and therefore no impairment rating was assigned.

10. In the Statement of Facts and Contentions and at the hearing the respondent conceded that during the claim period Mr Trad’s mental health condition was permanent within the meaning of the Act but that his impairment rating under Impairment Table 5 was no greater than 10 points.

11. Therefore, during the claim period, Mr Trad had a combined rating of at least 20 points under the Impairment Tables and satisfies section 94(1)(b) of the Act.

12. The next requirement that must be satisfied by Mr Trad to qualify for DSP is that he must satisfy the Tribunal that he had a continuing inability to work during the claim period: s 94(1)(c) of the Act.

13. Section 94(2) of the Act specifies the criteria for a person to be considered to have a continuing inability to work. If a person does not have a severe impairment (that is, they do not rate 20 points under a single Impairment Table) they must have actively participated in a program of support.

14. The respondent contends that Mr Trad did not have a continuing inability to work during claim period on the basis that he did not have a severe impairment within the meaning of s 94(3B) of the Act and had not actively participated in a program of support within the meaning of s 94(3C) of the Act.

15. On consideration of the evidence before the Tribunal I am satisfied that the evidence before the Tribunal tends to support the respondent’s contention in respect of subs (3C).

16. Therefore, it is necessary for the Tribunal to decide whether, during the claim period, Mr Trad suffered a “severe impairment” as a result of his mental health condition which would attract an impairment rating of 20 points alone.

17. In the Statement of Facts and Contentions the respondent had also contended that Mr Trad did not have a continuing inability to work because a Job Capacity Assessment (JCA) report dated 21 September 2012 indicated Mr Trad was able to work at least 15 hours per week within the next two years. I note in respect to that JCA that in coming to that conclusion the assessor had not taken into account the impact of Mr Trad’s mental health condition as it was not accepted at that time as being a permanent condition.

    Mr Trad’s Mental Health Condition

18. The documentary evidence before the Tribunal reveals a certain degree of confusion in respect of the duration, nature and severity of Mr Trad’s mental health condition. What is clear however, in my view, is that he suffers a chronic condition that has had a significant impact on his ability to function.

19. It appears that he has suffered from mental health issues since he was a teenager and for many years was able to function without any treatment. A claim for DSP made in 2006, which was rejected, indicated Mr Trad had depression but at the time the condition was well managed and caused minimal impact on his ability to function. The condition was said to cause him difficulties in concentrating and irritability. He was able to work, generally as a truck driver until early 2012 when he stopped working primarily because of his spinal condition.

20. In a letter dated 29 August 2012, Mr J D’Silva, clinical social worker and psychologist, notes that Mr Trad is receiving treatment for assistance in dealing with “symptoms of psychological illness” and states that DSM IV suggests a diagnosis of “Mixed Anxiety and Depression coupled with Panic Disorder”.

21. Mr D’Silva records a variety of symptoms including low mood, social anxiety, low confidence, panic attacks and a lack of focus and concentration.

22. Mr D’Silva also notes that Mr Trad is socially isolated, prefers to remain at home all the time, has poor planning and organisational skills, deteriorating memory and confusing thoughts.

23. In letter dated 8 November 2012 Dr I Ali, consultant psychiatrist, notes that he saw Mr Trad on 17 October 2012 and records a history of depressed moods, insomnia, irritability, poor concentration and difficulty in making decisions and added that there was no evidence of psychosis.

24. Dr Ali diagnoses major depression with dysthymia and suggests continuing treatment with Seroquel, Valium (prn) and adds Lexapro (10 mg) but provides no meaningful assessment of functional impact.

25. In a Centrelink Medical Report dated 19 November 2012 Dr Ali confirms that Mr Trad has been his patient since 17 October 2012 and the diagnosis of “major depression with dysthymia” and adds a new diagnosis of “panic disorder”.

26. Dr Ali notes that that Mr Trad has been treated by his GP with an antidepressant and Seroquel for the previous one and a half years and records current treatment as Lexapro (10 mg) and risperidone (2 mg) commenced on 17 October 2012 and Valium (prn).I note that Seroquel (quetiapine) is an atypical antipsychotic medication used in the treatment of schizophrenia and bipolar disorder and along with an antidepressant in the treatment of major depressive disorder. Lexapro (escitalopram) is an antidepressant medication used in the treatment of major depression disorder and generalised anxiety disorder. Risperidone is an antipsychotic medication used in the treatment schizophrenia, schizoaffective disorder and bipolar disorder.

27. Again, Dr Ali provides little useful information on functional impact.

28. In a report provided by the Health Professional Advisory Unit and dated 22 January 2014 Ms Hampson, clinical psychologist, notes that she contacted Dr Ali on 6 January 2014 by telephone and that he confirmed that Mr Trad had attended three consultations between 17 October 2012 and 25 March 2013 and was unsure why Mr Trad discontinued seeing him.

29. In his oral evidence Mr Trad indicated that he stopped seeing Dr Ali because it was too far to travel and Dr Malik’s practice was closer to home.

30. Ms Hampson notes that Dr Ali explained that he had added risperidone to Mr Trad’s medication regime because Mr Trad had complained of vague voices and his presentation could have been a psychotic depression.

31. I note that Dr Ali had excluded psychotic symptoms in his contemporaneous correspondence.

32. Ms Hampson notes that Dr Ali provided the opinion that functional impacts were moderate at that time on the basis that Mr Trad’s self-care was poor and he needed help in this area, was reported to be able to travel in familiar areas, was withdrawing socially, had no difficulties with planning and decision-making, had impaired concentration but his concentration span would have been more than 10 minutes and he was not able to “work/train” at that time.

33. Ms Hampson expresses the opinion that “functional impacts of major depression during the assessment period would align with an impairment rating of ten points”.

34. In a letter dated 11 April 2013 Dr Malik, consultant psychiatrist, notes that Mr Trad suffers a number of symptoms including auditory and visual hallucinations, persecutory beliefs, feelings of depression, passive and occasional active suicidal thoughts and that he has low energy, poor motivation and prefers to stay home and not go out.

35. Dr Malik notes that Mr Trad’s regular medication includes escitalopram, Seroquel, Valium and risperidone and that the dose of risperidone was increased to 4 mg just prior to the consultation.

36. Dr Malik makes a diagnosis of schizoaffective disorder and states that Mr Trad has a serious mental illness which may lead to long term disability.

37. I note that the Diagnostic and Statistical Manual of Mental Disorders (5^th ed.; DSM-5; American Psychiatric Association, 2013) describes schizoaffective disorder as an illness where there is a major mood episode (major depressive or manic) concurrent with features of schizophrenia and that distinguishing this disorder from schizophrenia and from depressive and bipolar disorders with psychotic features is often difficult.

38. In a Centrelink Medical Report dated 6 September 2013 Dr Atapattu, consultant psychiatrist at Fairfield Community Mental Health Centre (FCMHC), confirms Mr Trad has been a patient since July 2013 and suffers from schizophrenia and notes that current medication includes olanzapine and fluoxetine.

39. I note that olanzapine is an atypical antipsychotic medication used in conjunction with fluoxetine, an antidepressant, to treat schizophrenia and bipolar disorder.

40. In a letter dated 29 November 2013 Mr Brown, social worker/case manager, confirms that Mr Trad suffers from chronic schizophrenia and he has been a client of Fairfield Mental Health Team since July 2013 when he was referred by Dr Malik for consideration of treatment with clozapine.

41. I note that clozapine is an atypical antipsychotic medication prescribed for patients who are unresponsive to or intolerant of conventional antipsychotic medication and principally used in treatment of resistant schizophrenia.

42. In her report of 22 January 2014 Ms Hampson reports a telephone conversation with Dr Atapattu in which the doctor confirms that Mr Trad has schizophrenia as a major diagnosis and that it is possible that there is a co-morbid depressive condition.

43. Dr Atapattu advised that Mr Trad’s response to medication had not been good and that she had requested a second opinion to determine whether Mr Trad would be a suitable candidate for treatment with clozapine.

44. Dr Atapattu also stated that Mr Trad had been “quite chronically unwell for the past few years and that given the chronicity and symptoms, she was not expecting that further treatment would result in significant improvement for next couple of years”.

    CONSIDERATION

45. The medical evidence in this matter, particularly with reference to functional impact, is sketchy at best, contains a number of inconsistencies and is generally somewhat unhelpful.

46. I am satisfied, however, that that there is sufficient evidence to support a conclusion that during the claim period, and thereafter, Mr Trad has suffered a serious mental health condition that has had a significant impact on his activities involving mental health function. He has been treated with various antidepressant and antipsychotic medications with an apparently poor response.

47. On considering the whole of the evidence it is my impression that the serious nature of Mr Trad’s condition has been somewhat understated and that the manner in which the descriptors in Impairment Table 5 have been applied has led to an underestimation of the severity of the impact of Mr Trad’s condition on his activities involving mental health function.

48. The respondent contends that the evidence indicates that Mr Trad’s functional impairment during the claim period warrants a rating of 10 points and relies on the opinion of Ms Hampson as expressed in her report of 22 January 2014.

49. Ms Hampson in forming her opinion appears to rely significantly on her conversation with Dr Ali on 6 January 2014.

50. Under Impairment Table 5 a rating of 20 is assigned if a condition has a severe functional impact on activities involving mental health function, that is, if a person has severe difficulties with most of the following:

    (a)self care and independent living;

    (b)social/recreational activities and travel;

    (c)interpersonal relationships;

    (d)concentration and task completion;

    (e)behaviour, planning and decision-making;

    (f)work/training capacity.

    For each of the six descriptors above there are one or two examples provided.

51. The respondent submits that in order to be assigned 20 points in the severe category under Impairment Table 5 more than 50% or at least four of the six descriptors must be satisfied. I accept that Mr Trad must have had severe difficulties with at least four out of six descriptors.

52. In submitting that Mr Trad did not satisfy at least four of the descriptors it is my impression that the respondent has taken an overly narrow approach in the application of the table to the evidence. It appears that the basis for the respondent’s position is that Mr Trad’s circumstances did not correspond precisely with the example or examples provided under the descriptors. I consider that to adopt such an approach misconstrues the purpose of the examples provided under this table.

53. The Oxford English Dictionary defines an “example” as:

    A typical instance; a fact, incident, quotation, etc. that illustrates, or forms a particular case of, a general principle, rule, state of things, etc.; a person or thing that may be taken as an illustration of a certain quality.

54. One of the definitions of “example” provided by the Macquarie Dictionary is “an instance serving for illustration”.

55. In my view, the instruction in Table 5 requires an assessment of all of the evidence of the functional impact on Mr Trad’s mental health function and that the examples be used as guides to the descriptors. The examples are not exhaustive. Furthermore, I note that the introduction to Table 5 recognises the difficulties of assessing mental health impairment and, in particular, it notes that people may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects, the signs and symptoms may vary over time and mental health conditions are episodic and fluctuate and the rating that best reflects the person’s overall functional ability must be applied.

56. In respect of the descriptor (a), “self care and independent living”, Dr Ali had apparently indicated that “self-care was poor and customer needed help in this area”.

57. Mr Trad indicated in his evidence that he was very dependent on his family, particularly his wife and sister. Ms Hampson’s report refers to the fact that Dr Ataputtu told her that Mr Trad’s sister closely supervised his medication.

58. I accept that the evidence indicates that Mr Trad had severe difficulties in respect of self care and independent living.

59. With respect to descriptor (b), “social/recreational activities and travel”, Dr Ali indicates that Mr Trad “was able to travel in familiar areas” which appears to be consistent with the example in the descriptor.

60. The respondent contests this conclusion on the basis that Mr Trad has attended the SSAT and the Tribunal on his own and that he travelled to Saudi Arabia for one month in September/October 2013 without his wife.

61. I do not accept that Tribunal attendances which are intermittent, of high importance and where there is a strong incentive to attend can reasonably be used to contradict an assessment that Mr Trad usually travels alone only in familiar areas and has severe difficulties with travel.

62. In respect of his overseas travel Mr Trad explained that he was encouraged to go by his family in the belief that a pilgrimage to Saudi Arabia may help his mental health condition. All the travel and accommodation was organised within the Muslim community and Mr Trad went as part of a group. Mr Trad indicated that the trip was not very successful and that he was unable to participate in most of the activities and stayed in his own room, by himself, most of the time.

63. I note that the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 states that “when determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.”

64. Also in his evidence Mr Trad indicated that he stays at home as much as possible, has no interest in sport, is unable to read and does not participate in recreational activities outside the home.

65. I am satisfied that there is sufficient evidence before the Tribunal to support a conclusion that Mr Trad had severe difficulties with social/recreational activities and travel.

66. In respect of descriptor (c), “interpersonal relationships”, Dr Ali indicates that Mr Trad was “withdrawing socially”.

67. Dr Malik in his letter of 11 April 2013 notes that Mr Trad’s persecutory delusions and auditory and visual hallucinations caused him to stay at home and not go out much.

68. Also in his report 29 August 2012 Mr D’Silva noted “social phobia, social anxiety and social isolation - prefers to remain home all the time, does not like going out and being around people”.

69. I am satisfied that Mr Trad had severe difficulties with interpersonal relationships.

70. In respect of descriptor (d), “concentration and task completion”, Dr Ali indicated that Mr Trad’s concentration was affected but that his concentration span would have been more than 10 minutes.

71. It is not clear how Dr Ali was able to indicate such a precise time limit on Mr Trad’s concentration span.

72. I note that there is little evidence of any impact on Mr Trad’s functional capacity as a result of his treatment medication but when one considers the number of medications Mr Trad was taking it would be surprising if there was no impact on his functional capacity.

73. I am satisfied that Mr Trad had significant difficulties with concentration and task completion but there is insufficient evidence to conclude that the difficulties reached the severe threshold.

74. In respect to descriptor (e), “behaviour, planning and decision-making”, Dr Ali indicated that Mr Trad had no difficulties with planning and decision-making.

1. This is at odds with the report of Mr D’Silva who states that Mr Trad has “poor planning and organisational skills, confusing thoughts, excessive worry and anxiety over petty matters.”

2. I prefer Mr D’Silva’s contemporaneous description and I am satisfied that Mr Trad had severe difficulties with behaviour planning and decision-making.

3. In respect of descriptor (f), “work/training capacity”, Dr Ali indicates that Mr Trad “was not able to work/train at that time” which I believe is consistent with the example and therefore satisfies the descriptor.

4. In conclusion, notwithstanding the deficiencies of the medical evidence, I am therefore satisfied that during the claim period Mr Trad had severe difficulties with five out of six of the descriptors of activities involving mental health function and that his impairment rating in respect of this condition was 20 points under Impairment Table 5.

5. Also, I am satisfied that there is sufficient evidence before the Tribunal to support a conclusion that Mr Trad had a continuing inability to work.

6. This means that Mr Trad satisfied sec 94(1)(c) of the Act.

   DECISION

7. For the reasons set out above, I am satisfied that during the claim period Mr Trad had an impairment rating of 10 points under Impairment Table 4, 20 points under Impairment Table 5 and that that he had a continuing inability to work.

8. The reviewable decision is set aside and substituted with a decision that Mr Trad satisfied the requirements of section 94(1) of the Act during the claim period and was qualified to receive Disability Support Pension at the date of application.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 9 September 2014

Date of hearing	22 August 2014
Applicant	In person
Solicitor for the Respondent	Mr S Davidson, Department of Human Services