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

[2021] AATA 3237

Cincotta and Secretary, Department of Social Services (Social services second review) [2021] AATA 3237 (8 September 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1399

Re:Norman Cincotta

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:08 September 2021

Place:Sydney

The decision under review is affirmed.

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Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether the applicant’s impairment was 20 points or more under the Impairment Tables – whether the applicant had a continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 23, 94 and 1218AAA

Social Security (Administration) Act (Cth) ss 80, 117

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Dr I Alexander, Senior Member

08 September 2021

1. On 27 August 2019 Mr Cincotta, who is now 64 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 (Cth) (“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. On 3 March 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that, during the claim period, Mr Cincotta “was not awarded an impairment rating of 20 points” and, therefore, does not qualify for DSP.

4. In these proceedings Mr Cincotta, who was self-represented, seeks review of the AAT1 decision.

5. In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by telephone conference.

   STATUTORY PROVISIONS AND ISSUES

6. In order to qualify for DSP a person 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 subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth). That is, Mr Cincotta must satisfy the requirements between 27 August 2019 and 26 November 2019 (the qualification period).

7. Subsection 94(1) of the Act relevantly provides that a person is qualified for DSP 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)…

   (i)     the person has a continuing inability to work;

   (ii)    …

8. The Respondent concedes, and the Tribunal accepts, that Mr Cincotta suffered medical conditions that may cause impairment and, therefore, satisfied s 94(1)(a) of the Act.

9. For present purposes, the relevant medical conditions as listed in Mr Cincotta’s claim form include “depression, panic disorder, agoraphobia, anxiety, hypertension, left shoulder pain, gastroesophageal reflux”.

10. 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)).

11. 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

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

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

13. 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)”.

14. The Respondent contends that, during the qualification period, Mr Cincotta’s mental health conditions, although fully diagnosed, were not all fully treated and stabilised and, therefore, a rating under the Impairment Table 5 cannot be applied.

15. With respect to the Mr Cincotta’s “left shoulder” condition” The Respondent contends that, during the qualification period, the condition was not fully diagnosed, treated and stabilised and therefore a rating under the Impairment Tables cannot be applied 

16. With respect to Mr Cincotta’s other medical conditions The Respondent contends that the evidence, with respect to these conditions during the claim period, is “lacking in detail” and therefore an assessment as to any functional impact cannot be made.

17. The Respondent also contends that Mr Cincotta did not have a “continuing inability to work”.

18. Paragraph 94(2)(aa) of the Act provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)…– the person has actively participated in a program of support within the meaning of subsection (3C)…”

19. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

20. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim

21. Centrelink records indicate that, prior to the date of claim, Mr Cincotta had actively participated in a POS for 18 days and, therefore, he had not satisfied the requirements of section 7 of the POS Determination.

22. It follows that the determinative issue in this matter is whether, during the qualification period, Mr Cincotta suffered an impairment of 20 points or more under a single Impairment Table. 

    Mental health function

23. Following the death of his mother in 2015, Mr Cincotta suffered symptoms of depression and was referred to Ms Feltham, a clinical psychologist[1], who continued to see him intermittently over the next three and a half years.

    [1] 25 January 2015- Mental Health Care Plan – Depression and Anxiety

24. In a letter dated 22 April 2015, Ms Feltham, clinical psychologist, noted that Mr Cincotta had attended for six sessions and that “he has engaged very well in therapy and reports that he is finding the sessions beneficial”.

25. In a letter dated 30 April 2015, Ms Feltham noted that Mr Cincotta “has improved considerably in the past few months. One of the most helpful factors has been his ongoing employment with his cousin”.   

26. In a letter dated 17 August 2017, Ms Feltham noted that Mr Cincotta has attended on six occasions and that “so far this year and for the majority of the year his mood and level of functioning has been very good”. She also noted that Mr Cincotta has been “seeking support as he tries to resolve a difficult issue with his cousin at his place of work”.

27. In a letter dated 16 March 2018, Ms Feltham noted Mr Cincotta had completed six sessions and “is facing an ongoing issue with his cousin, who has not paid him a wage for the past few years”. She also noted that Mr Cincotta “participates well in therapy and follows up on set tasks”.

28. In August 2013 Mr Cincotta went to Dr Roxanas, a consultant psychiatrist.  In a letter dated 13 August 2018, Dr Roxanas, stated, inter alia, as follows;

    Mr Cincotta is a 62 year old single man who has been feeling miserable for the last three months as he is ruminating about the various threats he has received ……These are associated with anxiety symptoms, broken sleep, dizziness and unemployment since he stopped working with his cousins three months ago.  It appears that the above symptoms occurred against a background of being asked to work for his cousins who were irregular in their payments for his labours and ultimately needing to take the matter to the courts. His cousins than made veiled telephone and personal threats to him.

    ……His general health is good … He is currently taking Atacand[2]

    Diagnosis   Adjustment Disorder with depressed mood

    As Mr Cincotta wanted something to help him sleep I put him on Doxepin 50mg one nocte

    [2] Treatment for hypertension

29. In a letter dated 27 August 2018, Dr Roxanas noted that Mr Cincotta “appeared a little more settled ….he is occupying himself in various ways and is currently eating and sleeping well”.

30. In a Centrelink medical certificate, dated 30 October 2018, Dr Roxanas noted a diagnosis of “major depression” with date of onset as 8 May 2018. It was noted that the condition was temporary with an estimated a prognosis of 3-12 months.

31. In a letter, dated 8 November 2018, Ms Feltham noted that Mr Cincotta had completed six sessions and that he “has continued to struggle with low mood and significant stress and continues to pursue payment for the years of work that he has undertaken for his cousin…..and continues to pursue a number of legal avenues to be paid his wages”. She also noted that “he has recommenced attending church daily ….and has begun to explore other work options”. She also stated that “if Norm could find employment even on a part time basis, his mood and stress levels would improve considerably, so I will continue to encourage him to pursue this”.

32. In a letter dated, 31 January 2019, Dr Roxanas stated that Mr Cincotta “is still grieving the death of his rabbit ….On the positive side he was made to feel wanted and belonging as some friends invited him for a Christmas lunch …..he is trying to occupy himself in various ways and also in looking for another job……he can continue on Doxepin 25 mg one nocte[3]”

    [3] A reduction in dose from 50mg nocte

33. In a letter, dated 30 July 2019, Ms Feltham stated, inter alia, as follows:

    Norman CINCOTTA has completed the final session under your last referral[4] …..Norm has experienced very considerable stress this year with his legal issue with his cousin only making it to Court this month. I have been concerned about Norm’s physical health and have encouraged him to do gentle exercise, cook healthy meals and contact friends. Norm is spending hours each day reviewing, planning, discussing this current legal issue, and I am hopeful that now that proceedings are underway, he will be able to find some resolution.

    [4] Medicare Patient History Report: - last consultation 11 July 2019

34. In a letter dated 1 August 2019[5] Dr Roxanas stated, inter alia, as follows:

    On this visit Norman told me that he had been agoraphobic for some time. He is afraid to go over bridges, being in crowds and shopping centres and is reluctant to use lifts in buildings. ……I have now started him on Pristiq 50 mg[6] mane and to continue on Doxepin 25mg one nocte for one week and then stop it.

    Concurrently with the above I asked Norman to venture into situations and places he previously feared and let me know when I review him in a month’s time.

    [5] Ibid – consultation on 30 July 2019

    [6] Desvenlafaxine – SNRI antidepressant

35. In a brief note dated 21 August 2019 Dr Roxanas stated that Mr Cincotta is currently suffering from “Depression - Panic Disorder ċ Agoraphobia” and that “these condition’s make it impossible for him travel & work”.  He also stated “I request that the above issues be considered in his application for DSP”.

36. In a Centrelink medical certificate, dated 28 October 2019, Dr Roxanas noted a diagnosis of “Depression/ Agoraphobia” which was temporary with an estimated a prognosis of 3-12 months.

37. In a letter, dated 26 November 2019, Dr Roxanas stated, inter alia, as follows

    Norman told me about some of his misadventures with the social security but he has enough drive to go and sort them out. Unfortunately, he continues to be anxious and restricting himself from driving freely wherever he has to go, using lifts and trains and other symptoms suggestive of agoraphobia. I advised him to start Pristiq 50 mg one mane and explained that his dizziness was not due to the medication but rather to the underlying anxiety in these various situations. He fortunately agreed to restart it and I want to review him in a couple of weeks.

38. At the hearing, Mr Cincotta confirmed that he had stopped taking Pristiq for about 2 weeks prior to his consultation with Dr Roxanas in November 2019.

    Consideration  

39. Between January 2015 and July 2018 Mr Cincotta had been supported by regular therapy sessions with Ms Feltham, a clinical psychologist. During this period, he appears to have had various symptoms including depressed mood and feelings of stress.

40. In August 2018, Mr Cincotta was referred for psychiatric assessment because of increasing distress with respect to an ongoing dispute with his cousin about previously unpaid wages. Dr Roxanas, consultant psychiatrist, diagnosed “Adjustment Disorder with depressed mood” and prescribed medication for sleep. In a medical certificate dated 13 August 2018 he noted that the condition was temporary with an estimated prognosis of 3-12 months

41. In a letter, dated 8 November 2018, Ms Feltham noted that Mr Cincotta “continued to struggle with low mood” and “continued to pursue a number of legal avenues to be paid his wages” but had “begun to explore other work options”

42. In January 2019, Dr Roxanas noted that Mr Cincotta was “looking for a new job” and reduced the dose of the sleep medication.

43. In the six-month period between 2 January 2019 and 11 July 2019 Mr Cincotta attended 6 sessions with Ms Feltham. In her letter of 30 July 2019, Ms Feltham noted Mr Cincotta “has experienced very considerable stress this year with his legal issue with his cousin only making it to court this month. However, she made no reference to any symptoms or incapacity because of “anxiety” and/or “agoraphobia”

44. On the 30 July 2019[7], approximately three weeks after he had last been seen by Ms Feltham, Mr Cincotta was seen by Dr Roxanas. He presented with symptoms consistent with “anxiety and “agoraphobia”. New treatment with antidepressant medication was prescribed.

    [7] Medicare Patient History Report – 30 July 2019

45. In his letter of 21 August 2019 Dr Roxanas confirmed a new diagnosis of Panic Disorder ċ Agoraphobia and indicated that it was “impossible” for Mr Cincotta to ‘travel and work.’

46. On 27 August 2019 Mr Cincotta lodged a claim for DSP.

47. Mr Cincotta’s new mental health condition appears to have emerged acutely during July 2019, at about the same time his ongoing legal issue was going to court.

48. Treatment for this condition, with new antidepressant medication, was started less than one month prior to the date of claim. The medication was continued during the qualification period for about 11 weeks and then stopped. On the 26 November 2019, 3 days before the end of the qualification period, after consultation with Dr Roxanas, the medication was restarted and continued thereafter.

49. On consideration of the evidence that was available at the date of claim and during the qualification period, I accept that Mr Cincotta suffered an increase in mental health symptoms. These symptoms were fully diagnosed as a new mental health condition which I accept was fully treated at that time.

50. However, I am not satisfied that, during the qualification period, the new mental condition was fully stabilised.  Although the treatment had been ongoing during the claim period with a short interruption there was no documented evaluation of the effectiveness of the treatment or whether any further reasonable treatment was needed.

51. Furthermore, even if I were to accept that the condition was fully stabilised, in my view there was no satisfactory evidence to support a conclusion that these new symptoms would “more likely than not ... persist for more than 2 years”.

52. The medical certificate, provided by Dr Roxanas on 28 October 2019, can best be described as incomplete with little clinical detail. However, it does suggest that Mr Cincotta’s condition was “temporary” with an estimated prognosis of 3 -12 months.

53. Therefore, during the qualification period, Mr Cincotta did not satisfy the requirements of paragraph 6(3) and 6(4) of the Impairment Determination

54. It follows, that I am satisfied that during the qualification period, Mr Cincotta’s condition of “Panic Disorder ċ Agoraphobia” was not “permanent” for the purposes of the Impairment Determination, and, therefore, a rating under Impairment Table 5 cannot be applied.

    LEFT SHOULDER

55. At the AAT1 Hearing Mr Cincotta described “continuing pain and stiffness in his left shoulder and left ribs following an altercation with a relative about a year ago” and stated that he has seen a physiotherapist, but “the pain and stiffness have persisted”.

56. An X-ray of the left shoulder performed on 9 May 2019 is reported as showing only “mild degenerative changes”.

57. An ultrasound examination of the left shoulder and upper arm performed on 3 June 2019 revealed no abnormality.

58. As there is no other documentation as to diagnosis or treatment the Tribunal finds that a rating under the Impairment Table cannot be assigned.

    Other medical conditions

59. There is no evidence before the Tribunal to support a conclusion that Mr Cincotta suffers any functional incapacity because of “hypertension” or “gastroesophageal reflex” and therefore a rating of 0 points can be assigned

    CONCLUSION

60. For reasons set out above, I am satisfied that, during the qualification period, Mr Cincotta had a total rating of no more than 0 points under the Impairment Tables, which means he did not satisfy section 94(1)(b) of the Act and, therefore, did not qualify for DSP.

    DECISION

61. The Tribunal finds that, that during the qualification period, Mr Cincotta did not satisfy section 94(1)(b) of the Act and, therefore, did not qualify for DSP.

62. The decision under review is affirmed.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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Associate

Dated: 08 September 2021

Date(s) of hearing:	24 August 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr G Lozynsky