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

Morgan and Secretary, Department of Social Services (Social services second review) [2017] AATA 723 (24 May 2017)
Division:GENERAL DIVISION
File Number: 2016/5175
Re:Christine Morgan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:24 May 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed

LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary,
Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368.
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 D K Grigg
24 May 2017
INTRODUCTION

On 12 January 2016 Ms Morgan lodged a claim for Disability Support Pension (“DSP”), listing her medical conditions as “Anxiety generalised, Asthma, Cervical-disc disease C5-C6 most severe, Depression-major, Neuralgia, Osteoarthritis/neck, pain chronic” (“Claimed Medical Conditions”).[1]
[1] Exhibit 1, T Documents, T28, pages 108-138, Ms Morgan’s Claim for DSP dated 12 January 2016.
To date, Ms Morgan’s claim for DSP has been rejected. Ms Morgan seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Ms Morgan’s claim was rejected by a Centrelink officer on 6 February 2016.[2] The JCA concluded that Ms Morgan’s Claimed Medical Conditions were not fully treated and stabilised.[3]
[2] Exhibit 1, T Documents, T31, pages 147-148, Centrelink Decision dated 6 February 2016.
[3] Exhibit 1, T Documents, T30, pages 140-146, Job Capacity Assessment report dated 1 February 2016.
Ms Morgan then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Morgan’s Claimed Medical Conditions were not fully treated and stabilised.[4]
[4] Exhibit 1, T Documents, T34, pages 151-155, ARO Decision dated 30 May 2016.
Ms Morgan then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Ms Morgan’ claim and affirmed the ARO’s decision on 25 August 2016.[5]
[5] Exhibit 1, T Documents, T3, pages 5-13, SSCSD’s Decision and Reasons for Decision dated 25 August 2016.
Ms Morgan has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T2, pages 3-4, Application for Review of Decision dated 28 September 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Morgan must have a physical, intellectual or psychiatric impairment/s.
(b)Ms Morgan’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Ms Morgan must have a continuing inability to work.
[my emphasis]
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Morgan meets the Section 94 Requirements is the date of the claim (in this instance as at 12 January 2016), unless Ms Morgan becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, in order to qualify for DSP Ms Morgan must have met the Section 94 Requirements between 12 January 2016 and 12 April 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Morgan’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[9]
DID MS MORGAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Ms Morgan’s Medical Conditions
[10] Determination, s 3.
Spinal/Neck Condition
In March 2013 an x-ray of Ms Morgan’s cervical spine indicated:[11]
…partial loss of the normal cervical lordosis. Disc degeneration…from C4/5 to C6/7 with most severe degeneration at C5/6…mild ventral listhesis of C4 on 5.
[11] Exhibit 1, T Documents, T7, page 60, X-ray Report dated 8 March 2013.
A medical certificate in March 2013 records that Ms Morgan suffered from cervicalgia.[12]
[12] Exhibit 1, T Documents, T9, page 62, Medical Certificate of Dr Kurian dated 26 March 2013.
In April 2013 a CT of Ms Morgan’s cervical spine indicated:[13]
Low to moderate grade multilevel degenerative change that is most marked at C5/6 where there is high grade narrowing of the right neural foramen
[13] Exhibit 1, T Documents, T10, page 63, CT Report dated 6 April 2013.
In June 2014 Ms Morgan’s bone mineral density was measured and showed that Ms Morgan had osteopaenia with a moderate increased fracture risk.[14]
[14] Exhibit 1, T Documents, T13, page 70, Bone Mineral Densitometry Report dated 24 June 2014.
Ms Morgan attended a pain clinic in September 2014 for her ongoing neck pain. Dr Tim Grice, Specialist Pain Medicine Physician & Anaesthetist, recommended that Ms Morgan be referred to the Gold Coast Hospital Persistent Pain Service for medial branch blocks and radiofrequency neurotomies to her cervical spine, to be followed by muscle release and physiotherapy. Dr Grice reported that until those procedures had been performed Ms Morgan would not get full resolution of her neck pain.[15]
[15] Exhibit 1, T Documents, T14, pages 72-73, Report of Dr Grice dated 25 September 2014.
In March 2015 Dr Sabu Arunakumaran reported that Ms Morgan was still suffering from cervicalgia[16] and myofascial pain in trapezius.[17]
[16] Exhibit 1, T Documents, T16, page 75, Medical Certificate of Dr Arunakumaran dated 11 March 2015.
[17] Exhibit 1, T Documents, T18, page 81, Medical Report of Dr Arunakumaran dated 20 March 2015.
Ms Morgan was reviewed by Dr Grice again in October 2015. Dr Grice reported that Ms Morgan was suffering from widespread onset of pain consistent with fibromyalgia and that her condition had deteriorated and probably had a significant psychological component.[18] Dr Grice said that until Ms Morgan’s hypersensitivity was under control it would be difficult to manage her in any other way.
[18] Exhibit 1, T Documents, T21, pages 96-97, Report of Dr Grice dated 5 October 2015.
A further CT scan of Ms Morgan’s cervical spine was performed in October 2015 and found the C5-6 disc is narrowed and at C6-7 there is minimal disc narrowing with early marginal degenerative change.[19]
[19] Exhibit 1, T Documents, T22, page 98-99, CT Report dated 30 October 2015.
In November 2015 Dr Melwyn Dawson reported that Ms Morgan was suffering from osteoarthritis in her cervical spine.[20]
[20] Exhibit 1, T Documents, T24, page 102, Medical Certificate of Dr Dawson dated 17 November 2015.
In January 2016 Ms Morgan was placed on a waiting list for an appointment with the Interdisciplinary Persistent Pain Centre at Gold Coast Hospital.[21]
[21] Exhibit 1, T Documents, T29, page 139, Letter from Gold Coast Hospital dated 20 January 2016.
In March 2016 Ms Lisa St Henry, Physiotherapist, reported that Ms Morgan has chronic neck osteoarthritis and is in constant pain. Ms St Henry reported that Ms Morgan requires ongoing physiotherapy management and would benefit from assistance with her constant pain and limitations in daily tasks.[22]
[22] Exhibit 1, T Documents, T32, page 149, Report of Ms St Henry dated 18 March 2016.
In September 2016 Dr Dawson reported that Ms Morgan was suffering from osteoarthritis in her cervical spine.[23]
[23] Exhibit 1, T Documents, T35, page 158, Medical Certificate of Dr Dawson dated 19 September 2016.
Post-traumatic stress disorder (PTSD)/Depression/Anxiety
Dr Kurian, General Practitioner, reported that Ms Morgan suffered from PTSD in 1994.[24] Ms Morgan’s PTSD resulted from an armed hold-up experience.[25]
[24] Exhibit 1, T Documents, T8, page 61, Letter from Dr Kurian dated 26 March 2013.
[25] Exhibit 1, T Documents, T23, page 100, Report of Dr Murphy dated 11 November 2015.
In October 2015 Dr Grice reported that Ms Morgan was quite distressed and probably depressed and may require psychological support from widespread onset of pain consistent with fibromyalgia.[26]
[26] Exhibit 1, T Documents, T21, pages 96-97, Report of Dr Grice dated 5 October 2015.
As at November 2015, Ms Morgan had attended 9 psychology sessions with Dr Daniel Murphy, Clinical Psychology Registrar. Dr Murphy reported that Ms Morgan suffers from 3 disorders – PTSD, major depressive disorder and generalised anxiety disorder.[27] Dr Murphy reported that progress had been slow and that, due to her long history of mental illness and situational life stressors, her prognosis was only for incremental improvements in functioning over time.
[27] Exhibit 1, T Documents, T23, page 100, Report of Dr Murphy dated 11 November 2015.
In November 2015 Dr Dawson reported that Ms Morgan was suffering from anxiety and depression.[28]
[28] Exhibit 1, T Documents, T24, page 102, Medical Certificate of Dr Dawson dated 17 November 2015.
In December 2015 Ms Morgan attended her final psychology session with Dr Murphy. Dr Murphy recommended that Ms Morgan receive ongoing support due to her impaired functioning and situation stressors.[29]
[29] Exhibit 1, T Documents, T25, page 103, Report of Dr Murphy dated 8 December 2015.
In March 2016 Dr Murphy reported that Ms Morgan would require ongoing cognitive behavioural therapy to prevent further deterioration and that at that time she was unable to function sufficiently to engage in paid work due to her PTSD, major depression, and anxiety.[30]
[30] Exhibit 1, T Documents, T33, page 150, Report of Dr Murphy dated 21 March 2016.
In September 2016 Dr Dawson reported that Ms Morgan was still suffering from anxiety and depression.[31]
[31] Exhibit 1, T Documents, T35, page 158, Medical Certificate of Dr Dawson dated 19 September 2016.
JCA Report
The JCA was conducted face-to-face with Ms Morgan on 1 February 2016 by a Registered Psychologist and Rehabilitation Counsellor. The JCA assessors’ report confirmed that Ms Morgan suffered from the following medical conditions:[32]
·Osteoarthritis – cervical spine (which was found to be fully diagnosed but not fully treated and not fully stabilised);
·Depression (which was found to be fully diagnosed but not fully treated and not fully stabilised);
·Fibromyalgia (which was found not to be fully diagnosed, fully treated or fully stabilised);
·Asthma (which was found to be fully diagnosed but not fully treated and not fully stabilised)
[32] Exhibit 1, T Documents, T30, pages 140-146, Job Capacity Assessment report dated 1 February 2016.
Conclusion on Impairments
The Secretary accepts that Ms Morgan had Impairments which satisfied section 94(1)(a) during the Qualification Period.[33]
[33] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 March 2017, at para 22.
In light of the above evidence I find that during the Qualification Period Ms Morgan suffered from the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:-
·Osteoarthritis – cervical spine
·Depression and anxiety
·Fibromyalgia
In relation to the Asthma condition, Ms Morgan confirmed, at the hearing, that she manages her asthma with Ventolin. There is insufficient medical evidence to determine the status of this condition during the Qualification Period and whether or not it was fully treated and fully stabilised. Nor is there any corroborating medical evidence regarding what impact, if any, this condition is having on Ms Morgan’s ability to function. Therefore, I find that this condition is not an Impairment for the purpose of section 94(1)(a) of the Act.
DO MS MORGAN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[34] They are function based[35] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[36]
[34] Determination, ss 4(2) and 5(2)(a).
[35] Determination, s 5(2)(b) and (c).
[36] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[37]
(i)the condition causing that impairment is “permanent”; and
(ii)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[37] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[38]
[38] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Ms Morgan’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[39]
(i)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(ii)the condition has been fully treated;
(iii)the condition has been fully stabilised; and
(iv)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[39] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[40] the following is to be considered:[41]
(i)whether there is corroborating evidence of the condition; and
(ii)what treatment or rehabilitation has occurred in relation to the condition; and
(iii)whether treatment is continuing or is planned in the next 2 years.
[40] For the purposes of ss 6(4)(a) and (b) of the Determination.
[41] Determination, see s 6(5).
A condition is fully stabilised[42] if:[43]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(c)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[44] or
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[42] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[43] Determination, see s 6(6).
[44] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
However, before applying the Impairment Tables I must first consider Ms Morgan’s medical history, in relation to the condition causing the Impairments.[45]
[45] Determination, see s 6(2).
CERVICAL SPINE IMPAIRMENT
Is Ms Morgan’s Osteoarthritis – Cervical Spine Impairment permanent and likely to persist for at least 2 years?
In February 2016 the JCA determined that Ms Morgan’s Cervical Spine Impairment was fully diagnosed but not fully treated and fully stabilised because she had a pending appointment with Gold Coast Hospital Persistent Pain Service, as recommended by Dr Grice, Specialist Pain Medicine Physician & Anaesthetist, for medial branch blocks and radiofrequency neurotomies to her cervical spine, to be followed by muscle release and physiotherapy.
The Secretary submits that Ms Morgan’s Cervical Spine Impairment was not fully treated and fully stabilised in the Qualification Period.[46]
[46] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 March 2017, para 31.
I note that Dr Grice reported in 2014 that until the procedures recommended by him had been performed Ms Morgan would not get full resolution of her neck pain.[47]
[47] Exhibit 1, T Documents, T14, pages 72-73, Report of Dr Grice dated 25 September 2014.
As at the Qualification Period Ms Morgan had not undertaken reasonable treatment for the condition and the medical evidence indicates that the treatment recommended by Dr Grice is likely to result in significant functional improvement in the next 2 years.
At the hearing Ms Morgan said she was going to see Dr Grice again in the near future and was considering having some physiotherapy. She also said she wants to discuss with Dr Grice whether some form of medical marijuana treatment may assist to alleviate her pain.
The medical evidence supports a finding that Ms Morgan’s Cervical Spine Impairment was not fully treated and not fully stabilised during the Qualification Period and therefore is not permanent for the purposes of the Act. As a result, I am unable to assign an Impairment Rating.
DEPRESSION/ANXIETY AND PTSD IMPAIRMENT
Is Ms Morgan’s Mental Health Impairment permanent and likely to persist for at least 2 years?
In February 2016 the JCA determined that Ms Morgan’s Mental Health Impairment was fully diagnosed but not fully treated and fully stabilised because she required further psychological counselling which would assist in improving the functional impacts of the condition. The JCA also noted that there was no evidence of any confirmatory diagnosis by a psychiatrist or clinical psychologist.[48]
[48] Exhibit 1, T Documents, T30, page 141, JCA Report dated 1 February 2016.
Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, 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 by a psychiatrist).

Without such evidence no Impairment Rating can be assigned.
Ms Morgan’s Mental Health Impairment was diagnosed by a psychologist, Dr Murphy. At the time of making the diagnoses, Dr Murphy was not a clinical psychologist but was a clinical psychology registrar with a Masters of Clinical Psychology.
There is no indication from Dr Murphy as to what sort of diagnostic tools were used to form his diagnoses. However, I do not dispute the correctness of his diagnoses. The difficulty is the very specific requirement in Table 5 for such conditions to have been diagnosed by a psychiatrist or clinical psychologist.
Ms Morgan was seen by a Clinical Psychologist, Dr Harry Theodore, for the first time in July 2016, 3 months after the Qualification Period. Dr Theodore reports that Ms Morgan reported that she had suffered from a history of physical abuse as a child at the hands of her father and that her father’s death had rendered her psychologically immobile. Dr Theodore diagnosed Ms Morgan with “exacerbated PTSD, chronic” and reported that according to the Depression, Anxiety and Stress Scale she was extremely depressed, extremely anxious and severely stressed.[49]
[49] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 March 2017, Attachment A, Report of Dr
Theodore dated 25 July 2016.
The diagnoses by Dr Theodore, made such a relatively short time after the Qualification Period and of Dr Murphy’s diagnosis, in existence during the Qualification Period, means that Ms Morgan’s medical condition was fully diagnosed by psychologists (who may or may not have been clinical psychologists) with subsequent confirmation by a clinical psychologist (as required by Table 5 of the Determination).
The next issue to be determined is whether or not Ms Morgan’s psychological conditions are fully treated and fully stabilised. The Secretary contends that they are not because she had not yet exhausted all reasonable treatment.[50]
[50]Exhibit 2, Respondent’s Statement of Facts and Contentions dated 15 March 2017, paras 44-46.
Dr Murphy opined that:
(a)progress had been slow and that, due to her long history of mental illness and situational life stressors, her prognosis was only for incremental improvements in functioning over time;[51]
(b)Ms Morgan required on ongoing support due to her impaired functioning and situation stressors;[52]
(c)Ms Morgan would require ongoing cognitive behavioural therapy to prevent further deterioration.[53]
[51]         Exhibit 1, T Documents, T23, page 100, Report of Dr Murphy dated 11 November 2015.
[52]         Exhibit 1, T Documents, T25, page 103, Report of Dr Murphy dated 8 December 2015.
[53]         Exhibit 1, T Documents, T33, page 150, Report of Dr Murphy dated 21 March 2016.
As at the end of the Qualification Period Ms Morgan had had 10 sessions with Dr Murphy.
The difficulty with psychological conditions is that the signs and symptoms may vary and fluctuate. This is recognised in the introduction to Table 5 of the Determination.
Dr Theodore has recommended further therapy sessions and says Ms Morgan would require extensive therapy.[54]
[54] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 March 2017, Attachment A, Report of Dr
Theodore dated 25 July 2016 and Medical Report of Dr Theodore dated 19 August 2016.
I find that during the Qualification Period:
(a)there was corroborating evidence of Ms Morgan’s condition;
(b)Ms Morgan was receiving reasonable treatment in the form of counselling; and
(c)the treatments are continuing.
Therefore, I find that Ms Morgan’s mental health Impairment was fully treated as defined in section 6(5) of the Determination.
Ms Morgan was, and is still, receiving reasonable treatment for her condition. The question is whether the continued treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years such that it can be said her condition is fully stabilised.[55]
[55] For the purposes of ss 6(4)(c) and 11(4) of the Determination; see also Determination, see s 6(6).
Dr Murphy describes Ms Morgan’s condition as chronic and that she will likely experience significant dysfunction for the remainder of her life.[56]
[56] Exhibit 1, T Documents, T33, page 150, Report of Dr Murphy dated 21 March 2016.
Dr Theodore says that even with extensive therapy her conditions are likely to persist for more than 24 months and the impact of these conditions on her ability to function within the next 2 years will remain unchanged.[57]
[57]See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 March 2017, Attachment A, Medical Report of Dr Theodore dated 19 August 2016.
Therefore, I find that during the Qualification Period Ms Morgan’s mental health Impairment was permanent for the purpose of the Act and likely to persist for at least 2 years. An Impairment Rating using the Impairment Tables can now be assigned.
Using The Impairment Tables
I have to assess the level of impact of Ms Morgan’s Mental Health Impairment against the descriptors[58] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[59]
[58]Determination, see ss 3 and 5(3).
[59] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[60]
[60] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[61]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[61] Determination, see s 7.
I must not take into account the following information in applying the Tables:[62]
1symptoms reported by Ms Morgan in relation to her condition where there is no corroborating evidence;
2unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Morgan’ local community.
[62] Determination, see s 8.
Which Tables are appropriate are determined by:[63]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[63] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[64]
[64]Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[65]
[65]Determination, see s 11(1)(c)
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[66]
[66]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[67]
[67]Determination, see s 11(5).
Evidence Identifying the Loss of Function
In 2013 Dr Kurian reported that Ms Morgan was suffering from a stress reaction resulting in her becoming easily upset, not enjoying her activities and that she had poor motivation.[68]
[68] Exhibit 1, T Documents, T6, page 59, Medical Certificate of Dr Kurian dated 26 February 2013.
Dr Murphy reported:
(a)In November 2015 that Ms Morgan’s “mental health issues significantly affect her day-to-day functioning, and make it extremely difficult for her to engage effectively in work related duties. In particular, she experiences ongoing pain and debilitating fatigue, and [her] PTSD causes her to experience severe levels of anxiety in the presence of loud noises or other sensory cues that remind her of the event”;[69]
(b)In March 2016 that she has “low mood, severe anxiety, anhedonia, low motivation, confusion, hopelessness...[and]…is unable to function sufficiently to engage in paid work.[70]
[69] Exhibit 1, T Documents, T23, page 100, Report of Dr Murphy dated 11 November 2015
[70] Exhibit 1, T Documents, T33, page 150, Report of Dr Murphy dated 21 March 2016
In November 2015 Dr Dawson reported that Ms Morgan’s anxiety and depression made Ms Morgan “scared, worried, anxious, tense, [frustrated]” and she had “poor sleep, low mood, lack of interest, poor concentration”.[71]
[71] Exhibit 1, T Documents, T24, page 102, Medical Certificate of Dr Dawson dated 17 November 2015.
The JCA recorded that Ms Morgan reports:[72]
·…a low mood most days, racing thoughts, avoidance of crowded places and low self-esteem
·She lives independently managing all her self-care tasks
·She can travel independently out of familiar areas without any assistance
·Some difficulty interacting with others
·Difficulty concentrating on…tasks for long periods of time
·can be easily overwhelmed at times
[72] Exhibit 1, T Documents, T30, page 141, JCA Report dated 1 February 2016.
Dr Theodore reports Ms Morgan’s symptoms as follows:[73]
Dissociation/loss of time & disorientation, unexpected flashbacks…both impacting on ability to concentrate on tasks, taking direction from others...decision making, retaining instructions due to memory problems
…[problems with] interpersonal relationships…limited social contact, periodically agoraphobic…would be unable to receive and follow instructions
[73]See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 15 March 2017, Attachment A, Medical Report of Dr Theodore dated 19 August 2016.
At the hearing, Ms Morgan gave evidence that:
·She lives independently and takes care of all her self-care needs
·Her daily routine includes domestic duties, having coffee with the gardener, going shopping and three days a week she likes to go to the TAB to place bets on the horse races
·In January 2016 she volunteered at a Red Cross retail store approximately 10 hours/week and regularly communicated with customers. She said that her neck issues meant to she had to cease volunteering
·She has no difficulties with using public transport
·She has friends that take her shopping and that she has coffee with several times a week
At the hearing when I put to Ms Morgan how Dr Theodore has described her symptoms (see paragraph 81 above), she was surprised and said she did not know why he wrote those things or what he meant. She also said that she had only seen Dr Theodore once and that appointment was solely for the purpose of obtaining a clinical psychologist report.
Given Ms Morgan’s reaction to Dr Theodore’s report and her self-report, it is difficult to reconcile this against Dr Theodore’s report. In addition, Dr Theodore had only one meeting with Ms Morgan. I, therefore, do not place much weight on Dr Theodore’s report on the effect of Ms Morgan’s mental health impairment on her ability to function.
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination which deals with Mental Health Function is the relevant Table.
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·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 by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The JCA did not assign an Impairment Rating as it concluded that Ms Ward’s condition was not permanent. [74]
[74] Exhibit 1, T Documents, T30, page 141, JCA Report dated 1 February 2016.
The Secretary submits that, in the event this condition is found to be permanent, that an Impairment Rating of 0 points is appropriate.[75]
[75] Secretary’s Supplementary Submissions dated 5 May 2017, para 3.
The Descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities involving mental health function.
(1)The person has mild difficulties with most of the following:
(a)self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
In order to assign an Impairment Rating of 10 points under Table 5 the evidence would need to show the following:
There is a moderate functional impact on activities involving mental health function.
(1)The person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
The difficulty in determining an appropriate Impairment Rating in this case stems from the fact that the evidence given by Ms Morgan at the hearing is completely at odds with the evidence of Dr Murphy.
The introduction to Table 5 of the Determination notes that a person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
To assign an Impairment Rating of 0 points, as contended for by the Secretary, would completely ignore the report of Dr Murphy. Dr Murphy is Ms Morgan’s treating psychologist and had had 9 sessions with Ms Morgan at the time of writing his November 2015 report. I find that the corroborating medical evidence of Dr Murphy, read in conjunction with Ms Morgan’s evidence, supports an Impairment Rating of 10 points for Ms Morgan’s Mental Health Impairment.
FIBROMYALGIA IMPAIRMENT
Is Ms Morgan’s Fibromyalgia Impairment permanent and likely to persist for at least 2 years?
A medical certificate in March 2013 records that Ms Morgan suffered from neck pain - cervicalgia.[76]
[76] Exhibit 1, T Documents, T9, page 62, Medical Certificate of Dr Kurian dated 26 March 2013.
Dr Lyle reported in May 2013 that Ms Morgan had a restricted range of neck movement and pain with neck movements.[77]
[77] Exhibit 1, T Documents, T11, page 64, Medical Certificate of Dr Lyle dated 21 May 2013.
In March 2015 Dr Sabu Arunakumaran reported that Ms Morgan was treating her pain with acupuncture.[78]
[78] Exhibit 1, T Documents, T18, page 81, Medical Report of Dr Arunakumaran dated 20 March 2015.
In October 2015 Dr Grice reported that Ms Morgan was quite distressed and probably depressed and may require psychological support from widespread onset of pain consistent with fibromyalgia.[79]
[79] Exhibit 1, T Documents, T21, pages 96-97, Report of Dr Grice dated 5 October 2015.
As at the Qualification Period, Ms Morgan had not had her fibromyalgia fully diagnosed by a rheumatologist. Further, there is no record of any treatment being provided for this condition.
I am unable to find that this condition is permanent for the purposes of the Act. As a result, I am unable to assign an Impairment Rating.
CONTINUING INABILITY TO WORK
As I have concluded that Ms Morgan’s Impairments do not attract a total Impairment Rating of 20 points during the Qualification Period it is unnecessary for me to consider whether Ms Morgan had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period. However, for completeness, I note that section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

The requirements for a program of support, as referred to in section 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in section 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (section 8, POS Determination).
The relevant period, in this case, is the 36 months prior to the date of the DSP Claim.
The Program of Support referral summary indicated that Ms Morgan has only participated in a POS for 6.5 months during the relevant period, which is less that the amount required under section 94(2)(aa).[80]
[80] Exhibit 1, T Documents, T37, page 164, Program of Support Referral Summary.
Ms Morgan has not satisfied section 7 of the POS Determination and as a result does not satisfy the requirements of section 94(2). Therefore, Ms Morgan has not fulfilled the requirement in section 94(c).
CONCLUSION
Ms Morgan’s claim fails because she did not qualify for DSP during the Qualification Period under section 94(1)(b).
The decision under review is affirmed.
Ms Morgan is, of course, able to submit a new application for DSP in the event that her Impairments have deteriorated to such an extent that they have become permanent and attract a 20 point Impairment.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
...........................[Sgd].............................................
Associate
Dated 24 May 2017

Date of hearing 2 May 2017

Applicant By phone

Solicitors for the Respondent Department of Human Services

[2017] AATA 723

24 May 2017

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Date of hearing	2 May 2017
Applicant	By phone
Solicitors for the Respondent	Department of Human Services