GLYNIS LACEY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 534

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 534

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1154

GENERAL ADMINISTRATIVE DIVISION		)
Re		GLYNIS LACEY

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal   Dr I Alexander

Date  19 July 2010

Place  Sydney

Decision   The decision under review is affirmed.

….........[sgd]...............

Dr I Alexander
  Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether impairment rating can be assigned –  whether medical condition fully diagnosed, treated and stabilised – psychiatric condition affected by substance abuse and dependence – decision under review is affirmed.

Social Security Act 1991 – s 94, Schedule 1B

Social Security (Administration Act) 1999 – Schedule 2

REASONS FOR DECISION

July 2010	Dr I Alexander
Introduction

1.      Ms Lacey applied for Disability Support Pension (DSP) on 20 November 2008 on the basis that she suffers from a psychiatric condition which had a significant impact on her ability to function.  On 25 November 2008 Centrelink rejected the claim for DSP on the basis that Ms Lacey’s medical conditions were temporary.

2.      Upon Ms Lacey’s request the Centrelink’s decision was reviewed by an Authorised Review Officer (ARO), who affirmed on 6 January 2009 the decision to reject her claim for DSP on the basis that her condition had not been optimally treated or stabilised and an impairment rating could not be assigned. 

3.      Upon further appeal by Ms Lacey, the Social Security Appeals Tribunal (the SSAT) was not satisfied that her claimed medical condition had been fully diagnosed, treated and stabilised, and affirmed the ARO’s decision on 12 February 2009.  In these proceedings Ms Lacey seeks review of the decision by the SSAT.

Legislation

4. Qualification for DSP is determined by s 94 of the of the Social Security Act 1991 (the ‘Act’) which states the following:

(1)       A person is qualified for disability support pension 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)       one of the following applies:

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

5. Schedule 1B of the Act provides tables for the assessment of work-related impairment for DSP (the Impairment Tables). The Introduction to the Impairment Tables provides that :

“For a rating to be assigned the condition must be a fully documented, diagnosed, condition which has been investigated, treated and stabilised.”

6.      Qualification and impairment ratings for a DSP claim must be determined as at the date of the claim or within 13 weeks of the lodging of the claim in accordance with Schedule 2 of the Social Security (Administration Act) 1999.

7.       The “qualifying period” in this case runs from 20 November 2008 until 19 February 2009.

Issues

8. The Respondent accepts that Ms Lacey satisfies the requirements of ss 94(1)(a) of the Act in that she has a relevant impairment.

9. The Respondent contends, however, that the requirements of ss 94(1)(b) are not satisfied in that a rating under the Impairment Tables cannot be assigned because at the time of Ms Lacey’s application for DSP and during the qualifying period, her medical condition was not fully documented and diagnosed, and had not been investigated , treated and stabilised.

10. In respect of ss 94(1)(c) of the Act, the Respondent submitted that if the Tribunal were to find that Ms Lacey did satisfy ss 94(1)(b), the matter should be remitted to Centrelink for reconsideration.

Evidence

11.     Ms Lacey’s application on 20 November 2008 was supported by a Medical Report provided by Mr Rowland, a Clinical Psychologist, who had been treating her on a regular basis since September 2007.  In this report Mr Rowland indicated that a diagnosis of “bipolar disorder” was confirmed on 9 September 2008.

12.     Relevantly, Mr Rowland made no mention of any drug or alcohol problems and noted that the “patient may benefit from a second opinion and/or treatment from a psychiatrist re bipolar disorder”.

13.     In oral evidence Ms Lacey confirmed that she was in fact referred to a consultant psychiatrist Dr McCarron, but that there was a significant delay in getting an appointment and she did not see him until about February 2009.

14.     Ms Lacey’s evidence in respect of Dr McCarron was not entirely clear and there appeared to be some inconsistencies with her evidence before the SSAT and the history she provided to the psychiatrists who saw her later in 2009.

15.     Nevertheless it appears that she saw Dr McCarron on at least three occasions until April 2009 and that he did not agree with the diagnosis of bipolar disorder. Apparently he favoured a diagnosis of depression and prescribed antidepressant medication in the form of “Avanza”.

16.     There is no documentation from Dr McCarron before the Tribunal.

17.     Ms Lacey went on to say that in late 2009 she went back to see Dr McCarron and continues to see him on a regular basis.

18.      In respect of her medical treatment, Ms Lacey stated that she has continued and tolerated Avanza since February 2009 and that during 2009 her General Practitioner also started her on Lithium.  Initially she was unable to tolerate Lithium but after a dose reduction followed by a more gradual increase in dose, she was eventually able to tolerate the medication and has remained on a regular dose since late 2009.

19.     In August 2009 Ms Lacey was seen by Dr Barrett, consultant psychiatrist, who provided two reports dated 27 August 2009 and 11 February 2010.  Dr Barrett also gave oral evidence before the Tribunal.

20.     In her initial report, Dr Barrett noted a significant history of regular alcohol and marijuana use consistent with a diagnosis of substance abuse and/or dependence.

21.     Dr Barrett’s opinion is best summarised by an extract from her supplementary   report were she states :

“I am not able to diagnose her specific mood disorder with any certainty. However, she does consistently report symptoms of mood instability, depressive symptoms and episodes of irritability. This symptom cluster may be consistent with a variety of diagnoses, including Bipolar II disorder, Cyclothymia, Chronic Dysthymia or personality vulnerability. She does not report symptoms consistent with Bipolar I disorder or a melancholic depression and these conditions can be excluded.  

She has not seen a psychiatrist regularly, but regular review of her mental state, as well as longitudinal assessment would best clarify her diagnosis. Her drug and alcohol use, specifically the use of alcohol, amphetamines and cannabis will exacerbate her mood disorder and in some instances could be causative of similar mood symptoms. Therefore regardless of her diagnosis, her condition should not be considered stable until her co-morbid drug and alcohol use has been adequately treated and she is abstinent for a significant period.”

22.     In her oral evidence Dr Barrett was clearly of the view that when she saw Ms Lacey in August 2009, Ms Lacey had not had sufficient treatment directed to her drug and alcohol abuse.

23.     In November 2009 Ms Lacey was seen by Dr Cassidy, consultant psychiatrist, who provided a report dated 30 November 2009 and who also gave oral evidence before the Tribunal.

24.     In his report Dr Cassidy noted a history of chronic depressive symptoms and continuing alcohol use.

25.     Dr Cassidy diagnosed Dysthymia and Alcohol Abuse and expressed the opinion that these conditions were permanent and were unlikely to improve over the next two years, “given that she has already had what would be considered reasonable treatment”.

26.     Dr Cassidy did not elicit a history of continuing use of marijuana.  This is not consistent with Ms Lacey’s oral evidence where she conceded that she was currently still using about 1 gram of marijuana a day.

27.     In his oral evidence Dr Cassidy agreed with Dr Barrett’s assessment that Ms Lacey suffered from alcohol and drug dependence.  Dr Cassidy also acknowledged the difficulty in distinguishing primary depression and symptoms of depression secondary to drug and alcohol abuse.

28.     Dr Cassidy expressed the opinion, however, that Ms Lacey has had sufficient treatment for her substance abuse and that her failure to improve represents a treatment failure.  He explained that the treatment of substance abuse requires positive motivation and engagement by a patient and that medication and psychological treatment have limitations.  He supported his opinion by referring to the fact that Ms Lacey has had regular psychological treatment for several years, was seeing a psychiatrist on a regular basis and had been taking regular medication.

29.     In response to questions from the Tribunal Ms Lacey indicated that over the previous twelve months, particularly since she has been able to tolerate both the Avanza and Lithium, her symptoms in respect of her mood and ability to cope have significantly improved so that she has been able to reduce her alcohol and marijuana use.

Consideration

30.     On my reading of the evidence it is clear that at the time of her application for DSP and during the qualifying period, the medical condition suffered by Ms Lacey was not adequately diagnosed and therefore could not have been treated and stabilised.

31.     Mr Rowland had diagnosed bipolar disorder, a diagnosis which was not supported by the three psychiatrists who subsequently saw Ms Lacey.  In his documentation supporting her application for DSP, Mr Rowland made no mention of the substance abuse which clearly was a major contributing factor to any impairment suffered by Ms Lacey.

32.     Further, Ms Lacey’s own evidence supports a conclusion that the treatment started by Dr McCarron in February 2009 marked the beginning of improvement in her symptoms.  This leads to a further conclusion that, as her symptoms improved over the ensuing months, her level of impairment should also have improved.

33.     I found Dr Cassidy’s explanation in respect of the possible lack of benefit of additional treatment quite persuasive in the context of her current situation.  However, with regard to the time of her application for DSP or during the qualifying period, I was not persuaded that his explanation was relevant.

Decision

34.     For reasons set out above I find that at the time of her application for DSP and during the qualifying period, Ms Lacey’s medical condition was not diagnosed, treated and stabilised.

35. Therefore, the requirements of s 94(1)(b) were not satisfied and Ms Lacey did not qualify for DSP.

36.     The decision under review is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed:   ...........[sgd]......................................................
               Associate

Date of Hearing:  9 July 2010
Date of Decision:  19 July 2010
Applicant representative:                   Self-represented
Respondent representative:              Mr N Gouliaditis, AGS