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

[2021] AATA 207

Cocks and Secretary, Department of Social Services (Social services second review) [2021] AATA 207 (9 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1354

Re:Julie Marie Cocks

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Thompson

Date:9 February 2021

Place:Adelaide

The Tribunal affirms the decision under review.

........................[sgnd].............................

Member Thompson

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant's conditions were fully diagnosed, fully treated and fully stabilised at the date of the claim or within 13 weeks – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services (2015) FCA 1123

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member Thompson

9 February 2021

INTRODUCTION

1. The applicant, Julie Cocks, lodged a claim for disability support pension (DSP) on 11 January 2019.  Centrelink rejected the claim in the first instance and the applicant requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  The applicant requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  The decision under review was affirmed.  The applicant applied to the General Division of the Tribunal for a second review.

2. The hearing took place on 13 November 2020.  The applicant attended the hearing and was represented by Ms Riley.  Mr Chan represented the respondent, the Secretary, Department of Social Services.

3. The applicant gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), together with various medical reports and other documents.

4. The applicant is now 43 years old.  She suffers from a shoulder condition and depression.

   LEGISLATION AND ISSUES

5. The Tribunal must determine whether the applicant meets the criteria which are contained in section 94(1) of the Social Security Act 1991 (Cth) (the Act), in particular whether at the relevant date of 11 January 2019, or within 13 weeks of that date, she:

   (a)had a physical, intellectual or psychiatric impairment for the purposes of section 94(1)(a);

   (b)had an impairment rating of at least 20 points on the Impairment Tables contained in the Social Security (Tables for the Qualification of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) for the purposes of section 94(1)(b); and

   (c)had a continuing inability to work, as defined in section 94(2), for the purposes of section 94(1)(c).

6. The qualification period in this case is 11 January 2019 to 12 April 2019 (qualification period).

7. Accordingly, the applicant will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments; that the impairment is rated at least 20 points under the impairment tables; and that she has a continuing inability to work.

8. The respondent accepted that the applicant suffers from an impairment and therefore satisfies s 94(1)(a) of the Act.

9. In her Statement of Facts and Contentions, the applicant contended that:

   ·her right shoulder condition was fully diagnosed, treated and stabilised and with a moderate impairment there should be a rating of 10 points under impairment   table 2;

   ·the mental health condition was fully diagnosed, treated and stabilised and has a severe functional impact for a rating of 20 points under impairment five; and

   ·she has a continuing inability to work and meets the requirements of the Act for the DSP.[1]

   [1] Applicant’s Statement of Facts and Contentions dated 26 August 2020, pp 10–15.

10. In their Statement of Facts, Issues and Contentions, the respondent contended that:

    ·the shoulder condition was fully diagnosed; however, it was not fully treated and stabilised and no impairment rating can be assigned;

    ·the mental health conditions were diagnosed; however, they were not fully treated and stabilised.  In the alternative if the Tribunal determines that the mental health conditions were fully diagnosed, treated and stabilised, a maximum impairment rating under impairment table 5 is only 10 points; and

    ·without any impairment rating of 20 points, [the applicant] does not satisfy s 94(1)(b) of the Act.[2]

    [2] Respondent’s Statement of Facts, Issues and Contentions dated 8 September 2020, pp 6–9.

11. Accordingly, the respondent contended that the applicant did not have a continuing inability to work and was not qualified for the DSP during the qualification period.

12. The main issue for determination is whether the applicant’s impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, whether she had a continuing inability to work.

    THE APPLICANT’S EVIDENCE

13. The applicant told the Tribunal that she resides with her mother and has always done so.  She described the situation with her family.  She has two brothers who are now deceased.  Unfortunately, both suffered issues with mental health and addictions.  Her secondary education was limited, and she completed year eight.  Later, she tried secondary study at year 11 level.  The applicant told the Tribunal that she had obtained a Certificate 3 in business administration.

14. She has worked in administrative roles with a focus on data entry.  She struggles with the work because of problems with concentration and pain in her shoulder.  At the end of a day’s work she would self-medicate at home, as she described, to dangerous degrees.

15. The applicant injured her right shoulder several years ago and has suffered continuously with bursitis.  She said she has problems with her left shoulder as well.  She has had treatment comprising cortisone injections in each shoulder.  She consulted a physiotherapist in 2009 and attended regularly for treatment.  She has not had physiotherapy since that time, although she has carried out daily exercises using stretch bands in accordance with the physiotherapist’s advice.  She said she has difficulty carrying shopping bags with her left hand as it results in discomfort in her arm for the rest of the day.  Using a computer is problematic as the keyboard or the mouse triggers pain, while using a mobile phone also causes pain in her arm.

16. The applicant told the Tribunal that she has had anxiety and depression since childhood.  Several years ago, she participated in weekly therapy sessions through the Centre for Anxiety and Related Disorders Service at the Flinders Medical Centre, with a principal focus on exposure therapy.  She found the sessions quite helpful, however they did not always alleviate her anxiety.

17. She has consulted her general medical practitioner for help with her anxiety and depression.  Various antidepressant medications have been tried over the past nine years.  She confirmed that her general medical practitioner provides a mental health care plan for her.  Prior to the DSP claim, she had ceased using Lexapro as she was experiencing side-effects which included shortness of breath and a racing heart.  She changed the medication and now only takes Valium, however her general medical practitioner does not like her use of Valium as a treatment for her problems.

18. The applicant has consulted three psychologists over the past few years, most recently Ms Trainor, commencing in October 2018.  She consulted a psychiatrist only once and that consultation took place earlier in 2020.  She had previously been on a waiting list.

19. The applicant’s evidence is that she leads a quiet, relatively isolated, life at home with limited social and community involvement.  She does not sleep well.  She has tried sleeping tablets.  She said they make her feel very groggy the next day.  She said that she has obsessive thinking accompanied with mental and physical exhaustion.  She spends most of the day at home in her pyjamas.

20. During the morning and afternoon, she listens to talk back radio.  She has a computer but she does not use it often because of her shoulder pain.  She said she can concentrate only for a few minutes and she cannot focus as her mind races.  Her mother cooks the evening meals for her.  She showers once or twice per week.  She is anxious in the community and does not feel safe travelling on a bus.  Mixing with people causes her to become physically and mentally exhausted and the effects last for many hours.  Hence, she avoids social events.  She goes shopping as her mother has problems with her health.  She goes alone to the same shopping centre which is a five-minute drive from home.  There is one other shopping centre locally which she sometimes attends.  She is prone to stress and panic attacks when she shops.

21. The applicant said she does not have friends.  She sees her sister at Christmas and perhaps on one other occasion during the year.  Her sister has anxiety but manages to function.

    CONSIDERATION

22. Decisions of the Tribunal, such as Bobera and Secretary, Department of Families,[3] indicate that the Tribunal must consider the applicant’s qualification for DSP within the qualification period.  It is important to note the comments of the Tribunal in that case at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks) … If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

    [3] [2012] AATA 922.

23. The way in which the Tribunal must assess evidence of treatment after the qualification period has been discussed in several decisions.  For example, in Re Fanning and Secretary, Department of Social Services,[4] DP Handley stated at [33]:

    The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

    [4] [2014] AATA 447.

24. In the decision of Gallacher v Secretary, Department of Social Services[5] the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they provide evidence as to the claimant’s condition during the qualification period.

    [5] [2015] FCA 1123 at [25]–[28].

25. The applicable impairment rating, if any, for each of the applicant’s conditions will be considered in turn by reference to the Impairment Tables.

    IMPAIRMENT TABLES

26. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

27. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment results from a condition that is more likely than not to persist for more than two years.

28. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, treated and stabilised.  The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

29. Accordingly, consideration will be given to whether the applicant’s conditions were fully diagnosed, treated and stabilised during the assessment period before determining an assessment rating.

    EVIDENCE OF MS TRAINOR

30. Ms Trainor is a clinical psychologist.  The applicant consulted her for psychological treatment which commenced on 22 October 2018.  Ms Trainor provided three reports and she gave evidence to the Tribunal by telephone.

31. Ms Trainor reported that the applicant met the criteria for a diagnosis of generalised anxiety with secondary depression.[6]  Subsequently she referred to a diagnosis of panic disorder with secondary depression.[7]  To the extent that there may be a subtle difference in the diagnosis, she confirmed in evidence that it was more of a generalised anxiety disorder with secondary depression while noting nonetheless that the treatment was mostly the same.  The treatment for panic disorder involves supporting the client to have less catastrophic responses.  For generalised anxiety disorder, the treatment is based around exposure therapy.  A form filled out by the applicant’s general practitioner on 17 March 2016 included a diagnosis of anxiety and panic attacks.[8]  Another certificate dated 27 November 2018 from her general practitioner referred to a diagnosis of depression/anxiety as an exacerbation of a current condition,[9] which was affirmed in identical terminology in a medical certificate dated 1 April 2019.[10]

    [6] Exhibit 1, T18, Letter from Ms Trainor dated 7 January 2019, p 142.

    [7] Exhibit 1, T25, Letter from Ms Trainor dated 5 April 2019, p 159.

    [8] Exhibit 1, T43, Verification of medical conditions form dated 17 March 2016, p 272.

    [9] Exhibit 1, T50, Medical certificate dated 27 November 2018, p 292.

    [10] Exhibit 1, T24, Medical certificate dated 1 April 2019, p 158.

32. In her first report dated 7 January 2019, Ms Trainor confirmed that at the time of writing the report there had been only five sessions of therapy.[11]  The focus was on strategies which involved cognitive behavioural therapy and acceptance and commitment therapy.  The goal was to support the applicant to manage and reduce her symptoms of anxiety and to increase her well-being through changes to her lifestyle.  Ms Trainor was hopeful that the applicant could implement strategies which were discussed during the psychological therapy and, if she did, her ability to function in the work force should improve.  This report was written four days before the DSP claim was lodged.

    [11] Exhibit 1, T18, Letter from Ms Trainor dated 7 January 2019, p 142.

33. Ms Trainor’s second report was written on 5 April 2019.  Another five sessions of therapy had taken place which meant that a total of 10 sessions had occurred between 22 October 2018 and 5 April 2019.  Ms Trainor wrote that the applicant ‘has made little progress over the course of our sessions. She has struggled to consistently implement any of the strategies discussed in session’.[12]  This was seven days before the expiration of the qualification period.

    [12] Exhibit 1, T25, Letter from Ms Trainor dated 5 April 2019, p 159.

34. Ms Trainor told the Tribunal that the applicant’s shoulder pain probably exacerbates the mental health condition.  Furthermore, the lack of sleep may contribute to mental health issues.  In February 2019, at a time during the qualification period, Ms Trainor was concerned that initially the applicant was not implementing the psychological strategies in an optimal way to make changes to her mental health condition.  There was a need for improvement and changes in sleeping habits (for example going to sleep ‘at all hours’), dietary habits (for example excessive consumption of iced coffee) and in her lifestyle patterns (for example too much gaming).

35. Ms Trainor’s third report was written on 23 January 2020, slightly more than eight months after the qualification period.  It appears that she was asked to speculate on the possible results of psychiatric intervention had it occurred at an earlier stage.  Ms Trainor noted that the applicant was treated with ‘psychopharmacological interventions by her GP’ without enough relief from her symptoms to enable her to seek and maintain employment. She added ‘though I cannot be sure, I am inclined to think that the intervention of a psychiatrist would have likely yielded similar results’.[13]  That is, results similar to those reached through psychology sessions and prescription of medication by a general medical practitioner.  In evidence, Ms Trainor confirmed that a referral to a psychiatrist had been discussed with the applicant at the beginning of therapy in October 2018.  It did not proceed as the applicant felt she was receiving adequate treatment from her GP.

    [13] Exhibit 1, T28, Letter from Ms Trainor dated 23 January 2020, p 172.

36. Records from Ms Trainor’s practice indicate that the applicant had 23 sessions with another psychologist at that practice, comprising nine sessions in 2015, six sessions in 2016 and eight sessions in 2017.  Ms Trainor discussed the diagnosis with the other psychologist who told her that the applicant’s symptoms ‘were often severe and did not abate sufficiently to no longer be diagnosed with social phobia’.[14]  That was consistent with Ms Trainor’s assessment as she had also found that the applicant’s symptoms were resistant to treatment.

    [14] Exhibit 1, T28, Letter from Ms Trainor dated 23 January 2020, p 172.

37. Ms Trainor told the Tribunal that she considers the applicant has capacity for self-care although she is presently heavily dependent upon her mother.  She considers that the applicant is limited in social and recreational activities because of her anxiety, her concentration is limited, and when she has worked, she sometimes behaves inappropriately and says silly things, once more as a result of her anxiety.

    MENTAL HEALTH FUNCTION

38. Impairment Table 5 provides the descriptors relating to functional impairment due to a mental health condition, which includes recurrent episodes of mental health impairment.  The introduction to Table 5 also indicates that the signs and symptoms of mental health impairment can vary over time and for mental health conditions that are episodic, the rating that best reflects the persons overall functional ability is appropriate.  It is necessary to have regard to the severity, duration and frequency of the episodes or fluctuations.

39. Impairment Table 5 specifies that the diagnosis of a mental health 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 by a psychiatrist).

40. The applicant did not consult a psychiatrist before or during the qualification period.  However, the report and the evidence from the clinical psychologist, Ms Trainor, provides a diagnosis of generalised anxiety with secondary depression.  That diagnosis was made shortly prior to the qualification period and was confirmed during it.  A diagnosis of depression/anxiety is similarly provided in a medical certificate provided by the applicant’s GP on 2 January 2019.[15]

    [15] Exhibit 1, T17, Medical certificate dated 2 January 2019, p 141.

1. Accordingly, the Tribunal accepts that the applicant had a fully diagnosed mental health condition during the qualification period.

2. In considering whether the mental health condition was fully treated and fully stabilised, the Secretary contended that two psychologists formed the view that the applicant may benefit from psychiatric treatment.  That view was first expressed in a Job Capacity Assessment (JCA) Report on 18 March 2019 by a contributing assessor,  a registered psychologist, who considered that the mental health condition was not fully treated and stabilised as the applicant may benefit from psychiatric assessment and intervention.[16]  Another contributing assessor, also a registered psychologist, expressed a similar view in a report on 28 October 2019, observing that the condition was not fully treated and stabilised and only limited progress with  therapy, to that point, had occurred.[17]  Psychiatric assessment  and further intervention, such as potentially alternative therapy and medications, were suggested.[18]

   [16] Exhibit 1, T23, Job Capacity Assessment Report dated 18 March 2019, p 153.

   [17] Exhibit 1, T27, Job Capacity Assessment Report dated 28 October 2019, p 165.

   [18] Exhibit 1, T27, Job Capacity Assessment Report dated 28 October 2019, p 163.

3. The Tribunal considers that psychological treatment for the applicant in the period from October 2018 to mid-April 2019 was incomplete.  That is not to say that it was unhelpful.  Quite to the contrary, the assessment and expertise of the psychologist, Ms Trainor, was beginning to bring about some positive changes in the applicant’s lifestyle, her commitment to therapeutic intervention and the results of it.  Potentially, though not necessarily, it could have led to referral to a psychiatrist for assessment, diagnosis and intervention.  Potentially, it could also have led to further clarification of the relationship between the mental health condition and the physical pain from the shoulder condition.  There was also concern which the general medical practitioner has about the use of Valium to address the mental health condition.

4. For a condition to be fully treated and fully stabilised for the purposes of the Impairment Tables, the Tribunal must be guided by the criteria in section 6(5) and (6).

5. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and whether treatment is continuing or is planned in the next two years.

6. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

7. The applicant’s psychological treatment was being undertaken during the qualification period, having commenced shortly beforehand with Ms Trainor.  There is inferential evidence about previous treatment by a psychologist between 2015 and 2017.  In addition, the applicant had received treatment for mental health issues about 10 years ago.  However, the medical evidence and the allied health evidence about treatment and outcome at the time of the DSP claim rests largely on the information which Ms Trainor has provided and, to a lesser extent, on the medical certificates.

8. The treatment by Ms Trainor was continuing through the qualification period with only minor, incremental progress.  It is not possible to say whether psychiatric intervention would illuminate the question of diagnosis or assist with the course of treatment.  They are matters of speculation.  However, the medical and psychological evidence as summarised does not provide a basis for the Tribunal to be satisfied that the applicant’s mental health condition was fully treated and fully stabilised.

   UPPER LIMB FUNCTION

9. Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms.  The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not enough.

10. The medical evidence about the applicant’s shoulder condition was sparse.

11. A medical certificate signed by the applicant’s GP on 17 March 2016[19] mentions bursitis in each shoulder associated with ‘pain and decreased function’.  Treatment is noted as cortisone injections and physiotherapy.

    [19] Exhibit 1, T43, Verification of medical conditions form dated 17 March 2016, p 272.

12. A medical imaging report on 19 September 2016 of the right shoulder showed bursal thickening which was described as quite marked.[20]  On 15 May 2018, an x-ray and ultrasound revealed subacromial bursitis and minor supraspinatus tendinosis in the left shoulder,[21] followed on 21 August 2018 by an uncomplicated bursal injection.[22]  An undated report from a physiotherapist, seemingly written some time in 2009, referred to attendances for physiotherapy in the latter half of that year which included exercises, manual treatment and electrotherapy with some improvement but a ‘plateau’ in progress.[23]

    [20] Exhibit 1, T45, Ultrasound report – intervention only shoulder dated 19 September 2016, p 278.

    [21] Exhibit 1, Ultrasound report – shoulder and intervention and X-ray – left shoulder, 15 May 2018, p 279.

    [22] Exhibit 1, T47, Ultrasound report – intervention only shoulder dated 21 August 2018, p 280.

    [23] Exhibit 1, T51, Letter from Ms Sturm, undated, p 293.

13. Unfortunately for the applicant, the limited corroborating evidence is enough only to determine that the shoulder condition was fully diagnosed during the qualification period.  There is insufficient evidence to determine the condition was fully treated and fully stabilised at the time of the DSP claim.  Not surprisingly, the JCA Report assessed the shoulder and upper limb condition as diagnosed by an appropriately qualified medical practitioner while not fully treated and stabilised.

14. The Tribunal is satisfied that at the time of the DSP claim there was a diagnosis of an upper limb condition.  However, the condition was not fully treated, and it was not fully stabilised.  In those circumstances, an impairment rating cannot be given.

    SUMMARY

15. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

16. As outlined, the Tribunal finds that the applicant’s mental health condition was diagnosed but not fully treated and fully stabilised during the qualification period.  A rating under the Impairment Tables cannot be given.

17. The applicant’s upper limb condition was diagnosed, however it was not fully treated and stabilised during the qualification period and no rating can be assigned in respect of it.

18. With a total of 0 impairment points, the applicant does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore, she does not satisfy s 94(1)(b) of the Act.

19. In those circumstances, it is not necessary to consider whether during the qualification period the applicant had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

20. As the applicant was not qualified for DSP at the time she lodged the claim, or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

    DECISION

21. For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding sixty-one [61] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

...................[sgnd].....................

Administrative Assistant Legal

Dated    9 February 2021  

Date of hearing:  13 November 2020

Applicant’s Representative:  Ms M Riley, M Riley Lawyer

Respondent’s Representative:                   Mr A Chan, Sparke Helmore