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

[2022] AATA 2124

Macri and Secretary, Department of Social Services (Social services second review) [2022] AATA 2124 (4 July 2022)

Division:GENERAL DIVISION

File Number:          2021/8133

Re:Rosa Macri

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:4 July 2022

Place:Adelaide

The Tribunal affirms the decision under review.

…………………[sgnd]……………………………….

Senior Member K Millar

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

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

Senior Member K Millar

4 July 2022

BACKGROUND

1. Ms Macri has diabetes, vascular problems, problems with her mental health, osteoarthritis and recently suffered bleeding in her eye.  She has also had several toes amputated which affects her mobility. 

2. Ms Macri lodged a claim for a Disability Support Pension on 11 December 2020.  Her application for Disability Support Pension was refused and subsequent reviews by an Authorised Review Officer and the Social Services and Child Support Division (‘AAT1’) affirmed this decision.

3. To be granted a Disability Support Pension, Ms Macri must have a physical, intellectual or psychiatric impairment, her impairments must attract 20 or more points on the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ‘Impairment Tables’), and she must have a continuing inability to work. To meet the requirement to have a continuing inability to work, Ms Macri must have actively participated in a program of support if she does not have a severe impairment as defined in the Social Security Act 1991 (Cth) (the ‘Act’).

4. Ms Macri’s application for Disability Support Pension was refused because her impairments did not attract 20 points on the Impairment Tables. AAT1 affirmed the decision, also finding that her conditions did not meet the requirement to have 20 points or more on the Impairment Tables. While AAT1 found her lower limb condition attracted 10 points on the impairment rating tables, it found her mental health, diabetic eye disease, diabetic neuropathy and osteoarthritis were not fully treated and stabilised, and her condition of hypertension was well managed and did not attract impairment points.

5. Ms Macri has applied for further review, and submits that her other conditions, in particular her mental health, are longstanding conditions and that she is unable to work.  Ms Macri provided further medical reports about her osteoarthritis before the hearing, and arranged for her general practitioner, her psychologist and her job services provider to give evidence to the Tribunal. 

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

6. Under s 94(1) of the Act, to qualify for a Disability Support Pension a person must have a physical, intellectual or psychiatric impairment, the impairment or impairments must be of 20 points or more under the impairment tables and the person must have a continuing inability to work.

7. The time in which Ms Macri must meet these requirements starts on the date she claimed Disability Support Pension and ends 13 weeks after this date.[1] Ms Macri claimed Disability Support Pension on 11 December 2020, and the 13-week period starts on this date and ends on 11 March 2021 (the ‘claim period’).

   [1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act, Gallacher v Secretary, Department of Social Services [2015] FCA 1123, Prahauser v AAT [2020] FCA 1658 at [23]

8. Any new conditions, a deterioration in existing conditions, or conditions that were only fully treated, diagnosed and stabilised after the end of the claim period cannot be considered in assessing Ms Macri’s qualification for this claim.

9. The Secretary accepts Ms Macri had impairments in the claim period, but disputes her impairments attract 20 impairment points.

   Does Ms Macri have an impairment of 20 points or more under the impairment tables?

10. The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]

    [2] Clause 6(3) of the Impairment Tables.

11. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]

    [3] Clause 6(4) of the Impairment Tables.

12. In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[4]

    [4] Clause 6(5) of the Impairment Tables.

13. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[6] and that has a high success rate.[7] 

    [5] Clause 6(6)(a) of the Impairment Tables.

    [6] Clause 6(7)(c) of the Impairment Tables.

    [7] Clause 6(7)(e) of the Impairment Tables.

    Ms Macri’s conditions

14. In her application form, Ms Macri lists her conditions as diabetes, vascular problems, depression and general anxiety.  Ms Macri provided additional evidence prior to the hearing of osteoarthritis and problems with her vision. 

15. In a report dated 31 May 2021, prepared for the purpose of accessing the NDIS, Ms Macri’s general practitioner lists her conditions as hypertension, osteoarthritis, diabetes mellitus, peripheral neuropathy, severe peripheral artery disease with amputations and diabetic retinopathy, with dates of diagnosis ranging from 2013 – 2020. 

16. Since then, Ms Macri’s general practitioner has provided a medical certificate stating she has suffered a vitreous haemorrhage in her right eye.  Her psychologist, Ms Merkel, reports she has major depressive disorder, PTSD, panic disorder, generalised anxiety disorder and chronic pain.

    Mental Health

17. The introduction to Table 5 of the Impairment Tables must be taken into account in applying this impairment table,[8]  and states the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. 

    [8] Clause 7(1)(c) of the Impairment Tables.

18. Ms Macri has a diagnosis of depression and anxiety from her general practitioner.[9]  The report from clinical psychologist, Ms Merkel states she also has PTSD, panic disorder and chronic pain. 

    [9] T178

19. The conditions of PTSD, panic disorder and chronic pain have not been diagnosed by her general practitioner and these diagnoses do not appear in the claim period.  As a result, they cannot be assigned impairment points.

20. This leaves her conditions of depression and anxiety.  To be assigned an impairment rating these conditions must be diagnosed by a psychiatrist or by a medical practitioner or supporting evidence from a clinical psychologist. 

21. Ms Macri was first diagnosed with depression approximately 30 years ago, and said this diagnosis followed consultation with a psychiatrist. A report from registered psychologist, Mr Zeitz, dated 28 January 2021 states she was diagnosed with depression by Dr Schroeder, a psychiatrist working at the Queen Elizabeth Hospital in 1990.  Mr Zeitz states Dr Schroeder has since retired. 

22. Ms Macri provided open and forthright evidence, at times giving evidence that was not in her favour, for example that her more recent sessions with a clinical psychologist improved her symptoms. Ms Macri made considerable effort to recall accurately and report her conditions, and the Tribunal has no reason to doubt her oral evidence. 

23. The Tribunal accepts Ms Macri’s evidence, supported by the reports from Mr Zeitz and Ms Merkel, that her conditions of depression and anxiety were diagnosed by a psychiatrist approximately 30 years ago.

24. Ms Macri’s mental health deteriorated after the death of her husband and the amputation of her toes. Ms Macri said that from approximately December 2020 to March 2021 she went through a stage where she was really depressed.  She could not do anything or go anywhere, and her general practitioner recommended she see a psychologist.  She said she still feels depressed and anxious, but not to the same extent, and did feel a little better after seeing Ms Merkel.  Her condition makes her slow to remember things.  

25. The Tribunal at AAT1 was constituted by a medial practitioner, who did not consider Ms Macri necessarily had the same mental illness as diagnosed by a psychiatrist 30 years ago. The Tribunal at AAT1 found that Ms Macri was on a relatively low dose of anti-depressant of 50mg, and subject to clinical and possible side effects, there was scope to increase the dose to as much as 200mg daily.  No comment was available from Ms Macri’s general practitioner to clarify the efficacy of the dose of Zoloft, whether the dosage was considered optimal or if other antidepressant medication has been tried or considered, and this does not appear to have been sought.  The Secretary relies on the comments of the AAT1 to the effect that the conditions could be improved with, among other things, an increased dose of anti-depressant.  

26. Ms Macri’s general practitioner Dr Vinci gave oral evidence to the Tribunal.  Dr Vinci said Ms Macri has been his patient for over 40 years.  The records available to him at the hearing started from the advent of computer records in his office.  These records indicate a diagnosis of depression from 2004.  Ms Macri has been on 50mg Zoloft since, following advice from the psychiatrist.  Dr Vinci completed a mental health plan for Ms Macri on 21 January 2021, and she was referred to a psychiatrist on 30 November 2021.

27. Ms Merkel, a clinical psychologist, provided a report to Centrelink and gave oral evidence at the hearing. In her report of 25 June 2021 Ms Merkel reports she has seen Ms Macri twice commencing in May 2021, and Ms Macri is undertaking cognitive behavioural therapy to help her adjust to her current impaired health status and limited mobility.   It is also stated she is grieving the loss of her husband.  Ms Merkel expresses a view that Ms Macri will find psychological therapy helpful, but she has ongoing serious health conditions that impair her ability to live a full and active life.  

28. Ms Merkel reports Ms Macri has a long-term history of major depressive disorder, generalised anxiety disorder, panic disorder, and a recent onset of PTSD symptoms following her husband’s illness and death, and surgery resulting in the amputation of her toes.  Ms Merkel reports:

    Her anxiety symptoms have remained constantly present for her adult life.  She first had depression after having four miscarriages more than thirty years ago and was treated by a psychiatrist at the Queen Elizabeth Hospital as an outpatient.  Following the birth of her second son thirty years ago, she developed Post-Natal Depression.  Since then she has constantly been on antidepressants.  She has not had a period when she was not depressed. 

29. Ms Merkel told the Tribunal that she did not consider there would be a significant improvement if Ms Macri changed her medication or saw a psychiatrist and does not consider Ms Macri needs further medication or ECT for her depression. Ms Merkel gave evidence that Ms Macri’s depression is chronic and severe in nature but not to the point where other treatment would result in a significant improvement. She said that Ms Macri’s limited psychological literacy resulted in difficulty engaging with cognitive behavioural treatment approaches, so they have focussed instead on pain management and mindfulness. 

30. The documentary and oral evidence of practitioners who have directly assessed Ms Macri, and in the case of her general practitioner over a very long period of time, is that her conditions of depression and anxiety were fully treated and therefore fully stabilised in that she had undertaken reasonable treatment for the condition and that further reasonable treatment was unlikely to result in a significant functional improvement.  There is no suggestion Ms Macri has not followed medical advice.  The Tribunal does not consider that the emergence of new conditions means her existing conditions do not exist or could not be assigned impairment points.

31. The Tribunal finds that Ms Macri has undertaken reasonable treatment for depression and anxiety and further treatment is unlikely to result in a significant functional improvement.  As a result, these conditions were fully treated and stabilised. 

32. During the time she had depression and anxiety, she ran a business with her husband, raised her son, took her husband to medical appointments, and cared for her husband with the assistance of her family until his death. According to Dr Vinci,[10] and Mr Zietz[11] in the claim period her conditions resulted in some difficulty with social/recreational activities, concentration and behaviour, planning and decision making and affected her work and training capacity.   The Tribunal finds Ms Macri’s depression and anxiety had a mild functional impact and is assigned five impairment points under Table 5. 

    [10] T178

    [11] T254-255

33. Ms Macri was diagnosed with PTSD, panic disorder and chronic pain by Ms Merkel following the death of her husband and the amputation of her toes in late 2020. Due to her worsening symptoms, she was provided with a mental health care plan by Dr Vinci in January 2021 and had seen Ms Merkel twice by 25 June 2021.  Ms Macri said that talking about her situation with Ms Merkel helped, and that she had improved after March 2021.  These conditions were not fully treated and stabilised in the claim period ending 11 March 2021, and the functional effect of these conditions cannot be assigned impairment points. 

34. As a result, the functional impact of her mental health is assigned five impairment points under Table 5.

    Diabetic peripheral vascular disease

35. The diagnosis of peripheral vascular disease is recorded in the medical imaging report of 29 August 2020, and a medical certificate of 16 February 2021 provides a diagnosis of severe peripheral vascular disease with a date of onset of 16 December 2020.  A discharge summary from the Royal Adelaide Hospital dated 16 September 2020 provides a discharge diagnosis of peripheral vascular alternation. This condition is fully diagnosed.

36. Dr Vinci told the Tribunal that there is little that can be done for this condition as the small blood vessels are affected.  This condition is fully treated and stabilised.

37. Ms Macri says this condition results in numbness in her left foot and that it feels like a brick.  She had a stent inserted in her leg in 2012.  She has had her fourth and fifth toes on her right foot amputated and on her left foot her first toe, half her second toe, and her fourth toe have been amputated.  The amputation of her toes is recorded in the hospital discharge summaries that she provided. 

38. Ms Macri said that when she does her shopping, she can drive to the shops and can walk into the shops from the car but looks for a trolley when she arrives and holds the trolley for stability. She has trouble walking distances but can walk to the letterbox and back, which is 1- 1.5 metres.  She cannot manage stairs.  She said she can stand for 15 – 20 minutes and gets out of bed by using a sheet to assist her and supports herself while going to the toilet.  There are rails installed in her house, but these were not installed specifically for her. 

39. Ms Macri is unable to walk far outside her home, needs to drive or get other transport to local shops and is unable to walk around a shopping centre without the assistance of a trolley. This results in the functional impairment to her lower limbs of 10 points on Table 3 of the Impairment Tables.

    Diabetic eye disease

40. Ms Macri has had cataract surgery in the past and did not have problems with her vision since the surgery.  She has more recently had a vitreous haemorrhage in her right eye, however this was first diagnosed on 22 May 2021 and at the time of the medical certificate on 10 June 2021 was improving but it was uncertain if full recovery was possible.

41. Ms Macri said did not have a functional impairment to her vision prior to the vitreous haemorrhage.  As this condition was not present in the claim period, and the functional impact remained uncertain in June 2021 this condition was not diagnosed or stabilised in the claim period and cannot be assigned impairment points.   

    Peripheral neuropathy

42. While this condition is listed in the assessment dated 31 May 2021 of Dr Holt, there is no other information on this condition, including whether it is treated and stabilised, and whether it has any functional effect on Ms Macri that differs from the impact of other conditions.  As there is no information on this condition other than it being listed on one medical report, the Tribunal is not satisfied it is diagnosed, treated and stabilised or that it has a functional impact that differs from Ms Macri’s existing conditions. 

    Osteoarthritis

43. A report from Ms Macri’s general practitioner states she has osteoarthritis of her knees, hip back and neck dating back to 2013. Imaging reports from 2013 and 2014 report that changes of osteoarthritis are noted in the CT scan of Ms Macri’s knees in 2013.  The report of an x-ray of her hips and pelvis records mild subchondral sclerosis and mild narrowing of the joint spaces.  A 2014 investigation shows moderate degenerative changes in the C4 – 7 cervical region.  The diagnosis of osteoarthritis is listed in her discharge summary from the Royal Adelaide Hospital dated 19 May 2020.  This condition is fully diagnosed.

44. Ms Macri’s general practitioner reports that she has been treated conservatively since 2013.

45. Ms Macri said she has osteoarthritis of her knees and hip and suffers from pain in her left knee and that she is going to talk to Dr Vinci about a knee replacement.  She has pain but has not seen any specialists about her pain and takes Panadol.

46. This is a longstanding condition that has been diagnosed and treated.  Ms Macri refers to a knee replacement, however this was not mentioned by her general practitioner.  As this condition affects her lower limbs, it has been assessed in the functional impairment of her lower limbs, noting that Table 3 specifies that lower limbs extend from the hips to the toes. There is insufficient evidence to establish to a functional effect on her spinal function. 

47. The condition does not result in impairment points in addition to those assigned to her lower limb condition.  

    Hypertension and Diabetes

48. Ms Macri said her hypertension is controlled by medication, but she occasionally feels dizzy.  This condition does not currently result in a functional impairment. 

49. Ms Macri said her diabetes is controlled by medication and this condition does not currently result in a functional impairment.  

    CONCLUSION

50. The total impairment rating for Ms Macri is 15 points. As Ms Macri does not have an impairment rating of 20 points or more under the Impairment Tables, she does not meet the requirements in s 94(1)(b) of the Act and does not qualify for Disability Support Pension in the claim period.

1. As she does not meet the requirement to have an impairment rating of 20 points or more, it is unnecessary to consider whether she has a continuing inability to work.  However, for completeness it is noted that her job services provider Mr McAdam gave evidence that Ms Macri has a relatively low ability to obtain work due to her health barriers, and that they are looking to exempt her from the program of support requirements. 

   DECISION

2. The Tribunal affirms the decision under review. 

   …………[sgnd]……………

   Legal Administrative Assistant

   Dated: 4 July 2022

Date of hearing:	26 May 2022
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Jade Rapson, Services Australia