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

[2021] AATA 1098

Deniz and Secretary, Department of Social Services (Social services second review) [2021] AATA 1098 (29 April 2021)

Division:GENERAL DIVISION

File Number:          2019/6833

Re:Umit Deniz

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:29 April 2021

Place:Melbourne

The Tribunal affirms the decision under review.

..............................[SGD]..........................................

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – substance abuse – methamphetamine - mental health condition – anxiety, depression and post-traumatic stress disorder (PTSD) – diabetes - spinal condition - Hepatitis C - elevated cholesterol - liver damage - shoulder pain - whether conditions fully diagnosed, treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services [2014] AATA 447

Secondary Materials

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

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

REASONS FOR DECISION

Member R West

29 April 2021

BACKGROUND

1. This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 25 September 2019, affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (DSP).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 5 October 2018.

   ·The application was assessed and refused on 3 January 2019 (the Initial Decision).

   ·An authorised review officer (ARO) affirmed this decision on 3 July 2019 (the ARO Decision).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (the First Tier Review) and a decision affirming the ARO Decision was handed down on 25 September 2019.

   ·The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 19 October 2019.

3. A hearing in relation to the Second Tier Review was held by telephone on 16 March 2021. The Applicant was self-represented and had the assistance of a Turkish interpreter. The Respondent was represented by Ms Raveendiran, a solicitor with Services Australia.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person or deferred until the restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on 16 March 2021, on the basis that it was conducted by telephone. The Tribunal determined pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) to conduct the hearing by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

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

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 5 October 2018 and ended on
   4 January 2019.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence. Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992, [34]; Fanning and Secretary, Department of Social Services [2014) AATA 447 144,[33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353, [7].

   DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in s 94(1) of the Act, as assessed during the qualification period.

10. In essence, s 94(1) of the Act requires that:

    ·The Applicant have a physical, intellectual or psychiatric impairment; and

    ·The Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·The Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·The Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review, the Tribunal has had regard to:

    ·The documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents);

    ·The oral evidence of the Applicant and his treating psychologist, Dr Michael King; and

    ·The following documents:

    (i)medical report of Dr Anindya Banerjee dated 14 December 2020 filed by the Respondent (Exhibit R1);

    (ii)medical report of Dr Michael King, dated 15 February 2020 filed by the Applicant (Exhibit A1); and

    (iii)medical report of Dr Michael King, dated 1 February 2021 filed by the Applicant (Exhibit A2).

    CONSIDERATION OF ISSUES

14. The Applicant’s claim on review relates to the following conditions:

    ·Substance abuse – methamphetamine;

    ·Mental health condition – anxiety, depression and post-traumatic stress disorder (PTSD);

    ·Diabetes;

    ·Spinal condition;

    ·Hepatitis C;

    ·Elevated cholesterol;

    ·Liver damage; and

    ·Shoulder pain.

15. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent; that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[3]

    [3] S 94(1) of the Act.

    Substance abuse – methamphetamine

16. The Respondent submitted that the Applicant’s condition relating to his substance abuse was not fully diagnosed, treated, or stabilised within the qualification period.

17. The Respondent asserted that the Applicant had long standing issues relating to the use of methamphetamines, but supported the assertion with limited indirect evidence; namely, his licence suspension in November 2012,[4] his admission to a mental health facility for one day in August 1994,[5] and his conviction for traffic offences including failing an oral fluid test in November 2018.[6]  The Respondent did not produce any direct evidence of anything more than irregular drug use.

    [4] ST1.

    [5] T61.

    [6] T62.

18. The Applicant stated in his oral evidence that he had used methamphetamine but not often and denied that he had a substance abuse issue. Dr King, a clinical psychologist, stated that the Applicant has not reported a substance abuse issue to him and he opined that the Applicant’s behaviour was due to his underlying mental health condition, not caused by substance abuse.

19. The Respondent noted that as a result of his conviction in November 2018, the Applicant was required to participate in a drug and alcohol counselling program. A client progress report dated 29 April 2019, stated that the Applicant’s response to the program suggests a great capacity to maintain his goal of abstinence.[7]

    [7] ST5.

20. On the basis of this evidence, the Tribunal is not satisfied that the Applicant had a substance abuse condition which was fully diagnosed, treated, and stabilised during the qualification period.

    Mental health condition – anxiety, depression and PTSD

21. The Respondent submits that the Applicant’s mental health conditions (anxiety, depression and PTSD) were fully diagnosed during the qualification period but they were not fully treated or stabilised because reasonable treatment had not been undertaken and could not be undertaken, until the Applicant’s substance abuse issues were fully treated.

22. The Applicant was diagnosed with severe depression by his treating doctor in May 2015,[8] and referred to Dr King.[9] Dr King noted this diagnosis in his report of 17 September 2017, but did not provide his own diagnosis beyond recording that the Applicant experienced periods of distress and elevated anxiety.[10]

    [8] T12 referred to inT15 at p.138.

    [9] T21.

    [10] T20.

23. Dr King reported on 9 August 2016,[11] that the Applicant’s physical and mental health had significantly deteriorated but the report did not give a specific diagnosis. The report stated that a future review may seek to focus upon psychological aspects of his disability.

    [11] T30.

24. Dr King’s report of 3 March 2018,[12] noted a deterioration in the Applicant’s mental health over the past several years and that this was related to his physical ill health. The report noted that the Applicant’s decision-making was compromised and that there were specific social precursors which had led to an acute crisis of depression and self-defeating behaviour. Dr King indicated that he was treating the Applicant with appropriate supportive therapy. Dr King’s subsequent report of 18 April 2018,[13] noted that the Applicant’s mental fragility leaves him at significant risk of him letting go of his previous ‘reasonable stability’. A report of October 2018,[14] refers to major despair and loss of faith in the good intentions of other people.

    [12] T49.

    [13] T52.

    [14] T56.

25. In the DSP claim form submitted by the Applicant on 5 October 2018, the medical details section completed by Dr King[15] describes the Applicant’s medical condition as clinical depression and anxiety.

    [15] T57, 244-249.

26. The introduction to Table 5 – Mental Health Function states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner (a psychiatrist or clinical psychologist). The initial diagnosis by the Applicant’s treating doctor does not satisfy this requirement. However, the Tribunal is satisfied that the diagnosis of clinical depression and anxiety by Dr King on 5 October 2018, provides an adequate diagnosis for the purpose of Table 5, notwithstanding the lack of precision in his earlier reports. Accordingly, the Tribunal is satisfied that the Applicant’s condition of depression and anxiety was fully diagnosed at the time his claim was lodged on 5 October 2018.

27. The situation regarding the PTSD condition is not the same. It appears from the T Documents that Dr King was aware by 14 August 2018[16] that the Applicant had a traumatizing experience of having a gun pointed at him. However, the documents do not show that a diagnosis of PTSD was made until later. The Applicant’s treating doctor, Dr Rawal stated, in medical certificates dated 6 December 2018,[17] that the Applicant was suffering from PTSD type symptoms after allegedly being threatened at gun point while at work. On the same date Dr King noted the gun incident,[18] and stated that the Applicant’s various symptoms (paranoia, concern, sleep disturbance and anxiety) are all part of the constellation of a PTSD condition, and the diagnosis has been confirmed by his treating medical doctor.

    [16] T54.

    [17] T68.

    [18] T69,268.

28. On the basis of this evidence, the Tribunal is satisfied that the Applicant’s PTSD condition was fully diagnosed during the qualification period by a suitable qualified medical practitioner.

29. Dr King noted that a return to psychological health after a traumatic event is a slow process, and in the Applicant’s case was exacerbated by ongoing threats to kill him made in phone calls by the person who initially threatened him with the gun.[19] Dr King accepted in his oral evidence that the Applicant’s PTSD had not been fully treated during the qualification period.

    [19] T69.

30. The Respondent advanced three bases for asserting that the Applicant’s depression and anxiety had not been fully treated and stabilised during the qualification period:

    (a)The Applicant had not had reasonable treatment for the condition, and in particular had not been treated by a psychiatrist or properly treated with antidepressant medication;

    (b)The Applicant’s depression and anxiety could not be fully treated until the Applicant’s substance abuse issues were addressed; and

    (c)The Applicant’s depression and anxiety could not be fully treated and stabilised until the PTSD was treated and stabilised.

31. Treatment for the Applicant’s condition commenced in May 2015.[20] Prior to the qualification period, the Applicant was treated by his general practitioner and by Dr King. He saw Dr King on 10 occasions in 2015, two occasions in each of 2016 and 2017,[21] and 10 times after resuming treatment in March 2018,[22] seven months before lodging his claim for the DSP.

    [20] T14.

    [21] ST11.

    [22] T49 and ST11.

32. Dr King described his treatment as appropriate supportive therapy.[23] In his oral evidence, Dr King described the treatment as relaxation therapy including hypnosis to enable the Applicant to cope better and to calm his responses, and cognitive/behavioural therapy to provide him with alternative ways to respond to situations. Dr King acknowledged that relaxation therapy had not yielded satisfactory improvement, but the treatment overall had at least stopped the Applicant’s condition deteriorating, and the Applicant demonstrated that he thought it was helpful because he continued to attend for treatment voluntarily.

    [23] T49.

33. Dr King stated in his oral evidence that he was not qualified to administer pharmacological treatments and he relied on the Applicant’s treating doctor to determine the appropriate drugs to be prescribed. The Pharmaceutical Benefits Scheme (PBS) records, show that the Applicant was prescribed only one anti-depressant, Lexapro, on one occasion in October 2017.[24] The Applicant gave evidence that the medication caused him pain in his stomach so his doctor stopped its use and did not prescribe any alternative.

    [24] ST11.

34. The Applicant gave evidence that his treating doctor recommended that he see a psychiatrist, but it was not until 2020 that he first did so.

35. The Respondent provided a report from the Health Professional Advisory Unit (HPAU) setting out a medical opinion regarding the Applicant’s medical condition.[25].The report was based on a file review and consultation with treating medical practitioners, but did not involve an interview or examination of the Applicant. The report notes the guidelines for the treatment of mood disorders issued by the Royal Australian and New Zealand College of Psychiatrists (RANZCP) that the first line treatment for mild-moderate major depressive disorders should be evidence-based psychotherapy, such as cognitive behavioural therapy (CBT) and for moderate to severe or chronic depression pharmacotherapy, such as antidepressants with or without psychotherapy.

    [25] ST11,38-54.

36. The guidelines also indicate that antidepressants should be trialled for a few weeks and alternatives applied if ineffective. If psychotic depression was diagnosed, as may be the case in the Applicant’s situation, the guidelines suggest that antipsychotic medication may be appropriate. The HPAU also noted that substance abuse can also affect the course of treatment for mood disorders, and that it is recommended that in cases of comorbidity, it is beneficial to treat PTSD before treating depression. The guidelines also note that recommended treatment from PTSD includes trauma focused CBT, exposure therapy and pharmacological intervention.

37. Having reviewed the HPAU report and the evidence regarding the treatment provided to the Applicant prior to and during the qualification period, the Tribunal notes the following:

    (a)The diagnosis of the Applicant’s depressive condition during the period of treatment by Dr King prior to October 2018 was imprecise and leaves open the possibility that other treatments may have been more appropriate;

    (b)The Applicant was not seen by a psychiatrist until after the qualification period;

    (c)The lapses in treatment in 2016 and 2017 meant that the treatment by Dr King was, in effect, limited to 10 sessions over 7 months prior to the qualification period and Dr King acknowledged that the relaxation therapy had not yielded satisfactory improvement and the treatment overall had, at best, stopped the Applicant’s condition deteriorating;

    (d)The pharmacological treatment prescribed by the Applicant’s treating doctors was not in accordance with the RANZCP guidelines;

    (e)The treatment of the Applicant’s PTSD was not undertaken prior to the treatment for his depression and this may have retarded the efficacy of the treatment for depression; and

    (f)The recommended treatment for PTSD was not tried during the qualification period.

38. The Tribunal is not satisfied that the evidence establishes that the Applicant had a substance abuse condition, such that it would have interfered in the treatment of the Applicant’s mental health conditions and rejects the Respondent’s contentions in this regard.

39. The Tribunal is satisfied that reasonable treatments, as defined in s 6(7) of the Impairment Tables and 3.6.3.05 of the Social Security Guidelines were available, but had not been fully utilised in the treatment of the Applicant’s mental health conditions (depression, anxiety and PTSD) during the qualification period; such that the conditions were not fully treated and fully stabilised. Accordingly, the mental health conditions cannot be assessed under Table 5 of the Impairment tables.

    Diabetes

40. The Respondent accepts that the Applicant’s diabetes was fully diagnosed but contends that it was not treated and stabilised during the qualification period because the Applicant had never seen a dietician, diabetic specialist or an endocrinologist and had poorly complied with past treatment.

1. The Applicant’s diagnosis of diabetes was noted in the medical certificate issued by Dr Aida Karimpourghanadi on 16 May 2015,[26] and glucose tests conducted in May 2014 were found to be consistent with diabetes mellitus.[27]

   [26] T14.

   [27] T6.

2. The Respondent asserted that by the qualification period, the Applicant had not started to use insulin[28] and his doctor Dr Rawal reported to a job capacity assessor in April 2019 that the Applicant needed to be more compliant with treatment advice.[29] The Applicant confirmed to a job capacity assessor in April 2019 that he had never seen a dietitian, diabetic specialist or an endocrinologist.[30] He stated in his oral evidence that he had not taken insulin injections because he did not like needles. He said that he is checked at home once each week by a nurse from Melton Health Care who had monitored his blood sugar levels and made dietary recommendations. He also stated that he started taking tablets 2 or 3 years ago and when he takes them, he is fine.

   [28] T78.

   [29] T78.

   [30] T78, 298.

3. On the basis of this evidence, the Tribunal is not satisfied that the Applicant had availed himself of all available reasonable treatment in relation to his diabetes condition by the qualification period. Accordingly, the condition was not fully treated and stabilised during the qualification period.

   Spinal Condition

4. The Respondent submits that the Applicant’s spinal condition was not fully diagnosed, treated or stabilised during the qualification period.

5. In March 2017, an Xray was taken of the Applicant’s lumbar spine and the radiologist noted that there appears to be slight anterolisthesis at L5/S1 which may indicate L5 pars defect. [31] The radiologist suggested CT scanning for further evaluation.[32] The Applicant confirmed in his oral evidence that no CT scan was conducted and there is no evidence that the Applicant had seen a spinal specialist or a neurologist to confirm the tentative observation of the radiologist. The Applicant confirmed in his evidence that he has taken Panadeine Forte on the advice of his treating doctor for pain related to his back, but had otherwise not undertaken any treatment including physiotherapy, hydrotherapy or pain management.

   [31] T36.

   [32] Ibid.

6. On the basis of this evidence the Tribunal is not satisfied that the Applicant’s spinal condition was fully diagnosed, treated, or stabilised during the qualification period and accordingly, it cannot be assessed under the Impairment Tables.

   Hepatitis C

7. The Applicant confirmed in his evidence, that his Hepatitis C condition had been fully resolved 2 or 3 years before the qualification period as a result of a treatment program provided by the Royal Melbourne Hospital.

   Other Conditions - elevated cholesterol, liver damage and shoulder pain

8. The Respondent asserted that there is insufficient evidence to assess the Applicant’s conditions of elevated cholesterol, liver damage and shoulder pain during the qualification period, for the purposes of a disability support pension claim.

9. The Applicant gave evidence that his elevated cholesterol is treated with medication and that he does not experience any impairment from the condition. He stated that the only effect he experienced from scarring on his liver was that he needed to drink a lot of water to flush it out. He said that his shoulder pain was caused by using the double clutch when driving his truck and that it resolved after a period of rest.

10. On the basis of this evidence, the Tribunal is satisfied that these conditions are not permanent conditions warranting any rating under the Impairment Tables.

    CONCLUSION

11. For the reasons discussed, the Tribunal is not satisfied that the Applicant has a physical, intellectual or psychiatric impairment which rates 20 points or more under the Impairment Tables as required by s 94(1) of the Act. Accordingly, the Applicant was not qualified for a DSP at the date of his claim or within the qualification period.

12. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.

    DECISION

13. The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member R West

.................................[SGD]....................................

Associate

Dated: 29 April 2021

Date of hearing:	16 March 2021
Applicant:	By telephone
Solicitor for the Respondent:	Ms Arabi Raveendiran