Rozalia Yakubova and Secretary, Department of Social Services
[2013] AATA 851
[2013] AATA 851
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2351
Re
Rozalia Yakubova
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 29 November 2013 Place Sydney The Decision under review is affirmed.
..........................[SGD]..............................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY—Pensions and benefits—Disability support pension—Wide-spread spondylopathy—Anxiety/ depression—Migraine—Polycystic ovary syndrome—Uterine fibroids— Whether conditions can be assigned a rating under the Tables for the Assessment of Work-related Impairment for Disability Support Pension—Whether conditions are diagnosed, fully stabilised and fully treated
LEGISLATION
Social Security Act 1991 (Cth) - ss 94(1)(c)(i); 94(2)(aa);
Social Security (Administration) Act 1999 (Cth) – ss 13; 42; Sch 2 cl 4(1);
CASES
Yakubova and Secretary, Dept. Families, Housing, Community Services and Indigenous Affairs and Anor (Unreported, Social Security Appeals Tribunal, Member Richardson, 15 April 2012
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member A K Britton
29 November 2013
Rozalia Yakubova has applied to the Administrative Appeals Tribunal for review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal (SSAT), to reject her claim for disability support pension (DSP).
Ms Yakubova immigrated to Australia in 1989. She is a single parent with three children. The youngest is now 18 years of age. She ceased work in 2008. She is currently in receipt of Newstart Allowance.
To qualify for DSP, Ms Yakubova must have:
·A permanent impairment rated 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Tables), and
·a “continuing inability to work” because of the impairment (s 94(1)(c)(i)) of the Social Security Act 1991 (Cth) (the Act), and
·undertaken a “program of support” unless she has a “severe impairment” (s 94(2)(aa) of the Act).
The question of whether Ms Yakubova qualifies for DSP must be assessed by reference to the 13-week period starting on 16 October 2012, the day she is deemed to have made a claim for DSP, and ending on 15 January 2013 (ss 13, 42 and cl 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth)). I will refer to this period as “the claim period”.
In support of her claim for DSP, Ms Yakubova provided Centrelink a pro forma medical report dated 20 October 2012 prepared by her GP of 23 years, Dr Alex Aristoff. Under the heading “Conditions that have a significant impact on patient’s ability to function” Dr Aristoff listed “wide-spread spondylopathy” and “anxiety depression”. In answer to the question “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?” Dr Aristoff listed three conditions:
·POCS [Polycystic ovary syndrome]
·Uterine fibroids
·Migraine
Ms Yakubova contends that she satisfies the criteria for DSP based on four of the five conditions listed by Dr Aristoff. She concedes that one of the listed gynaecological conditions, uterine fibroids, was not “fully treated” in the claim period and does not rely on it to support her claim. I am of the opinion that that concession was appropriately made and it is accepted.
The Secretary accepts that Ms Yakubova suffers an impairment of spinal, mental health and gynaecological function and migraines. He contends however that apart from Ms Yakubova’s depression/ anxiety none of the claimed conditions are permanent and therefore cannot be assigned a rating under the Tables. Further he asserts that Ms Yakubova does not have an impairment rating of at least 20 points, or a continuing inability to work.
CLAIMED CONDITION 1: “WIDESPREAD SPONDYLOPATHY”
The Secretary contends that this condition has not been diagnosed, fully treated or fully stabilised and therefore cannot be rated under the Tables. Ms Yakubova disagrees.
In a report dated 20 October 2012 (the initial report), Dr Aristoff wrote that Ms Yakubova had been diagnosed with “wide-spread spondylopathy” in 1995. At the request of Centrelink he supplied this information:
History
Severe pain in the spine
Difficulties moving about
Current symptoms
as above progressive restriction of movement
Current treatment
Supportive
Past treatment
As above
Future planned treatment
Depends on further investigation
Impact on ability to function
Disabled by pain
Patient’s compliance with recommended treatment
Adheres to all the recommendations
Dr Aristoff wrote that the condition was expected to last for more than 24 months and he was uncertain about its effect on Ms Yakubova’s ability to function within the next two years as this “would depend on the effect of that treatment”.
In December 2012 Dr Aristoff wrote to Centrelink advising that Ms Yakubova had been “undergoing further assessment and treatment in relation to her back pain and gynaecological problems” and requested that her DSP review be postponed. (Ms Yakubova underwent gynaecological surgery in January 2013.) On 9 April 2013 Dr Aristoff wrote to Centrelink stating that Ms Yakubova had been suffering from multiple medical problems and was incapacitated by “severe back pain”.
Radiological evidence
Produced in these proceedings were a number of radiological reports relating to Ms Yakubova’s spine.
A report of X-rays of Ms Yakubova’s spine taken in September 2012, stated:
The vertebrae show no compression. The disc space at C5-6 is narrowed with tiny anterior osteophytes. There is no osteoarthritic encroachment on the foramina. The atlanto-axial joints and odontoid peg are normal and there is no cervical rib. (T p105)
In February 2013 Ms Yakubova was referred for a CT scan of her spine. Reporting on the scan of Ms Yakubova’s lumbar and cervical spine, the radiologist wrote:
Lumbar spine
Minor posterior disc protrusion at L4/5. No significant narrowing of the spinal canal. Neural foramina and lateral recesses are clear. Facet joints are clear.
Cervical spine:
The C5/6 and C6/7 disc spaces are a little narrowed and small osteophytes have developed.
There is a minor osteophytic encroachment in the right paracentral region of C5/6. There is no significant narrowing of the spinal canal. There is no cord compression or displacement.
The following month a CT scan of Ms Yakubova’s thoracic spine was taken. The radiologist reported that it revealed:
Minor degenerative changes are present in the superior and mid thoracic spine with formation of small osteophytes about the discs.
Degenerative changes are prominent at the facet joints at the T3/4, T4/5 and T5/6 levels. The remaining facet joints appear clear. The costovertebral joints appear clear.
There is no posterior disc protrusion. There is no encroachment on the spinal canal. There is no cord compression or displacement.
The neural foramina appear clear.
Ms Yakubova was subsequently referred for a MRI. Commenting on the MRI of the cervical spine taken in July 2013, the radiologist reported:
Comment
·Mid cervical spondylosis with mild spinal stenosis and equivocal cord deformity at C5/6 and C6/7
·No associated cord signal change
·Right foraminal narrowing at C4/5 and C5/6
·Left medial foraminal narrowing at C5/6 with approximation of the existing nerve roots at these levels
Two months later an MRI was taken of Ms Yakubova’s thoracic and lumbar spine. The radiologist reported:
Conclusion
Minor left paracentral disc protrusion T6/T7 within the thoracic spine: otherwise varying degrees of mild to moderate costovertebral joint hypertrophy.
In the lumbar spine, there is multilevel degenerative disc change, most prominent at L4/L5, L5/S1 with broad-based disc protrusions with right foraminal component L4/5, which contacts the existing L4 nerve root. Moderate facet joint hypertrophy.
The L5/S1 disc protrusion contacts the thecal sac and traversing right S1 nerve root.
Report of symptoms
Ms Yakubova claims that she is crippled with pain from her back and neck and often has extreme difficulty moving. She claims that she been experiencing back and neck pain for the past 10 years and that her current level of pain has been at about the same level for the past five years. She claims she is now unable to:
·Get out of bed without assistance
·Perform any overhead activities
·Put her hands behind her back
·Clean her teeth
She also claims that her daughter has acted as her carer since she finished school in early 2013, and now assists her with toileting and getting in and out of bed. According to Ms Yakubova her pain levels increase with stress. She also claims that without pain medication she would be unable to attend appointments outside the home and undertake activities such as preparing for this case and attending the Tribunal.
Current treatment
Ms Yakubova has been under the care of osteopath Alexi Volkov since early 2011. In a report dated 30 October 2012 Mr Volkov recorded that Ms Yakubova complained of debilitating chronic low back, mid thoracic and neck pain. He wrote that she claims that her condition is aggravated by: sitting for more than 10 minutes, driving for less than 10 minutes, carrying or lifting loads of more than two kilograms and that the pain is triggered by activities such as getting in and out of a car or climbing stairs. He wrote that despite Ms Yakubova having received a range of treatments including chiropractic intervention, physiotherapy, muscle strengthening and exercise therapies, “only minor improvement of the symptoms” had been achieved.
On examination Mr Volkov in October 2013 reduced movement of Ms Yakubova’s lumbar and cervical spine, 50 and 40 per cent, respectively. He attributed this to pain and muscle spasm.
Mr Volkov described Ms Yakubova’s symptoms as “fluctuating”:
From the information provided by the patient and from my experience the patient’s symptoms appeared to be of a fluctuating nature which was expressed by periods of minor and non-interfering low back pain, neck pain and mid thoracic spine pain with episodes of exacerbation of the symptoms and disabling manifestation of her condition.
Ms Yakubova claimed that in the past she used Panadeine Forte® but about a year ago moved to Endone® because the former was no longer effective in managing her pain. She stated she is reluctant to take Endone® on a regular basis as it made her feel “dopey” and she wants to remain alert for the sake of her children.
The evidence given by Ms Yakubova about additional treatments recommended by her treaters was not entirely clear. She claimed that in the past she had been treated with acupuncture and physiotherapy but could not recall when this stopped. She also said that as recommended, she attempted to swim but stopped on account of the pain. While unsure she thought that the swimming attempt occurred about five years ago. She said she also, as recommended, attended a gym but stopped a short period on account of injury. She could not recall when this occurred.
Assessment by Job Capacity Assessor
At the request of Centrelink Ms Yakubova attended a job capacity assessment conducted by a registered nurse in November 2012. At the time of that assessment the only available radiological evidence was the X-rays taken of Ms Yakubova’s spine. In a report dated 7 November 2012 the assessor wrote:
Symptoms: TDR states severe pain in the spine. The client reported severe pain as well as referred pain in the lower limbs.
Treatment: The client reported that she is currently treated by an Osteopath (Report included). She has been treated with Physiotherapy in the past and reported that she has also been treated with Acupuncture and Chinese Herbs.
The client was previously prescribed analgesia and anti-inflammatory agents however reported that she longer takes medication as relief is only temporary.
There has been no Specialist involvement - the client confirmed that she has not seen an Orthopaedic specialist and does not intend to as she is unable to afford the fee.
Functional Impact: The client reported difficulty with most household chores and with sitting for more than 10 minutes. TDR states “disabled by pain … difficulties moving around”.
TDR states that this condition will persist beyond 24 months and that future planned treatment depends on further investigation.
The Assessor notes that the XRAY report does not support either the information contained in the TDR nor the client’s self report. (The information is conflicting)
The Assessor also emphasises that whilst the client has engaged in alternative therapies - which are expensive and may or may not be covered by Medicare - she has not attended an Orthopaedic Specialist for a more accurate assessment of her condition and more effective strategies to manage her pain. If she is “disabled by pain” then the treatment measures noted above have not been successful.
The client ceased work in 2008 as she was “physically and mentally exhausted”
The Assessor and Contributing Assessor are also of the view that further Specialist evidence (from a relevant authority) would be required in order to make a more accurate assessment.
This condition is permanent but not considered FTS for the reasons noted. The Assessor feels that the client has not pursued all available and reasonable treatment options.
Specialist opinion
Ms Yakubova was assessed by orthopaedic surgeon Dr Ralph Stanford in February 2013. In a report dated 14 February 2013, he wrote:
I reviewed Mrs Yakubova today. She is a 42-year-old woman who presents with chronic, non-specific neck and low back pain. She has been receiving income support and is required to comply with Job-search requirements. She seeks a report from me to support disability pension.
Her examination is unremarkable. CT scan of her neck and back again are unremarkable.
I am unable to define the cause or extent of any disability. I told her that I would not prepare a report to support disability pension application.
Ms Yakubova was subsequently assessed by neurologist, Dr Dan Milder. In a report dated 17 September 2013 Dr Milder wrote that the MRI of Ms Yakubova’s thoracic and lumbar spine taken two days earlier showed a slight left posterior paracentral protrusion of T6-7 intervertebral disc and broad based posterior protrusions of intervertebral discs between the fourth lumbar and first sacral levels. In his opinion Ms Yakubova suffered slight thoracic spondylosis and generalised lumbar spondylosis. He noted that Ms Yakubova was reluctant to take medication for pain and suggested that she might swim to strengthen her lower back muscles.
Assessment of impairment under the Tables
The Act requires that Ms Yakubova’s impairment be assessed under the Tables. Before a rating for impairment can be assigned under the Tables the claimed condition said to have caused the impairment must be permanent, that is, diagnosed and fully treated and stabilised, and more likely than not, in light of the available evidence, to persist for more than two years (ss 6(3) and 6(4) of the Tables).
The terms fully diagnosed, fully treated and fully stabilised are defined in the Tables:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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:
(i) 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; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
“Reasonable treatment” is defined by s 6(7) to mean treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Was Ms Yakubova’s “widespread spondylopathy” a permanent condition in the claim period?
In support of the contention that Ms Yakubova’s claimed spinal condition was not permanent the Secretary points to: (i) Dr Aristoff’s request made after preparing his initial report that Centrelink delay reviewing his patient’s DSP claim because, among other things, the following month she was to be assessed by an orthopaedic surgeon; (ii) Dr Aristoff’s comment that Ms Yakubova’s future/planned treatment “depends on further investigation”. Ms Yakubova contends that her condition was permanent in the claim period pointing out that in his initial report Dr Aristoff characterised his diagnosis as “confirmed” and not “presumptive”. She asserts that the reason Dr Aristoff requested a delay of the review was because of her pending gynaecological surgery and inability to deal with more than one significant issue at a time.
I do not agree with the Secretary’s submission that further testing and investigation after the claim period necessarily means that the condition was not permanent. If, as suggested by Ms Yakubova, the sole purpose of the tests was to obtain evidence to challenge the decision to refuse her claim for DSP, of itself, this would not disqualify the claimed condition from being categorised as permanent.
However in my opinion it could not reasonably be argued that Ms Yakubova was sent for further testing solely for the purpose of obtaining further supporting evidence. While plain that Dr Aristoff strongly supported his patient’s claim for DSP not unreasonably he had concluded that further investigation was required before he could proffer an opinion about what, if any, treatment was planned. This is not surprising given, as pointed out by the job capacity assessor, when Dr Aristoff prepared his initial report the only available radiological evidence were X-rays and did not have the benefit of recent specialist opinion.
On the available material it is unclear whether following receipt of the radiological evidence and the opinions of Drs Milder and Stanford, Dr Aristoff formed a view about whether further reasonable treatment for Ms Yakubova was warranted, and, if so, whether it was likely to result in significant functional improvement. However it is clear when preparing his initial report he was of the opinion he was unable to make that assessment and would not be able to do so until he had considered the results of further testing. For a condition to be considered “fully stabilised” there must be a proper basis for concluding that either no further reasonable treatment was available or — if it was — it would be unlikely to result in significant functional improvement. In my opinion Ms Yakubova’s spinal condition could not be characterised as “fully stabilised” in the claim period.
There can be no argument that during and before the claim period, Ms Yakubova had received some “reasonable treatment” including osteopathy and medication for pain relief. Ms Yakubova testified that at various times her treaters have also recommended that she undertake muscle-strengthening exercises. It is unclear from the evidence when she attempted to follow those recommendations and whether when she encountered difficulties, alternative options were explored or discussed with her treaters. While Ms Yakubova is of the opinion that she is unable to swim or undertake structured exercise programs without further injury, there is no evidence that her treaters share this opinion. Dr Milder apparently considers that swimming would not be injurious to Ms Yakubova. It may be as Ms Yakubova asserts that she is unable to undertake any form of strengthening exercises within reasonable pain tolerances and without injury. However on the available evidence I could not be satisfied that this is the case.
Ms Yakubova contends that her back and neck condition were assessed by neurologist Dr Paul Teychenne prior to the claim period who advised that “nothing could be done”. Reports prepared by Dr Teychenne produced in these proceedings (23 January 2002, 30 January 2002, 6 February 2002 and 13 February 2002) indicate that Ms Yakubova was referred to Dr Teychenne in relation to a range of symptoms. None suggests that Ms Yakubova’s back and neck condition were the focus of Dr Teychenne’s assessment or that he believed that “nothing could be done”. But in any event, over ten years have passed since Ms Yakubova was seen by Dr Teychenne and on her account her condition had declined significantly in that time.
While the Tables do not require that specialist opinion and radiological evidence be obtained before a condition can be characterised as “permanent” where, as in this case, the condition is reported to have resulted in the disabling symptoms of the type described by Ms Yakubova, in my opinion such evidence would ordinarily be required before the condition could be said to be diagnosed, fully treated and fully stabilised.
Not being satisfied that the claimed condition was fully treated and fully stabilised during the claim period I could not be satisfied that the condition was permanent within the meaning of the Tables.
But even if the claimed condition were able to be characterised as permanent a difficulty arises with the assessment of impairment under the relevant table, Table 4. This is because in applying the Tables only impairment caused by the “permanent condition(s)” can be taken into account. The specialists who assessed Ms Yakubova in 2013 saw nothing of note on the radiological evidence they examined: Dr Stanford described the findings revealed by the CT scans as “unremarkable”; Dr Milder stated that the MRI scans revealed “slight thoracic spondylosis” and “generalised lumbar spondyolsois”. If, as claimed, Ms Yakubova suffers from the type of disabling symptoms she described in these proceedings ― which include an inability to toilet, clean her teeth and get in and out of bed without assistance ― the weight of evidence suggests that they are unlikely to be attributable to “widespread spondolopathy”. It may be, as Ms Yakubova suggests, that she also suffers from other conditions such as rheumatoid arthritis and/or a “pinched nerve” and this might account for the severity of her reported symptoms. However unless found to be permanent any impairment that might flow from those condition(s) cannot be taken into account in the assessment of impairment.
On the available material I am not satisfied that Ms Yakubova’s widespread spondolopathy was permanent at any time within the claim period. Accordingly an assessment of impairment under the Tables cannot be made.
CLAIMED CONDITION 2: ANXIETY AND DEPRESSION
The Secretary accepts that this condition was diagnosed and fully treated and fully stabilised during the claim period but contends that its impact on Ms Yakubova’s ability to function is mild and at best attracts a rating of five points under the Tables. According to Ms Yakubova, of her claimed conditions, anxiety and depression have the most impact on her capacity to function.
In his initial report Dr Aristoff provided a diagnosis of anxiety/depression. He recorded a history of low mood, poor motivation and outlook and recorded these, together with insomnia and panic attacks, as current symptoms of the condition. Under the heading “treatment’ he wrote:
Current treatment
Counselling/ [illegible]
Past treatment
As above
Depends on the outcome
Dr Aristoff wrote that Ms Yakubova was very compliant with recommended treatment and followed all recommendations. In his opinion she was disabled by mood swings and this would probably continue for the next 24 months.
Ms Yakubova was referred to psychologist Ms Natalya Meylakh for counselling under a mental health plan in 2008. This continued until January 2011. Counselling recommenced in October 2012 and continues to this day.
Ms Yakubova saw psychiatrist Dr Masood Khan during 2009 for about six months. According to Ms Yakubova she stopped seeing Dr Khan because she believed that he was uncomfortable with her history of traumatic experiences. She said that she discontinued the antidepressant medication he had prescribed because she was unable to tolerate the medication. In these proceedings she was unable to recall precisely when and for how long she trialled antidepressants.
I have some reservations in these circumstances whether Ms Yakubova’s “anxiety/depression” could be described as “fully treated”. If, as Ms Meylakh believes, Ms Yakubova suffers a “major depressive disorder” it seems somewhat unusual that anti-depressant medication has not been recommended. It is a matter of common knowledge that antidepressants are commonly used in the treatment of depression. It may be that Dr Aristoff is of the opinion that such treatment is not necessary or could not be tolerated by Ms Yakubova. However the absence of better evidence about the claimed trials and whether alternative medication and/or dosages were explored, raises doubts about whether the condition could be said to be fully treated and fully stabilised.
However for current purposes I will assume that the condition can be characterised as permanent.
What rating should be assigned to Ms Yakubova’s anxiety and depression?
The Secretary agrees with the finding made by the SSAT that anxiety/depression has a mild functional impact on Ms Yakubova. Ms Yakubova, on the other hand is of the opinion that the condition has a moderate to severe functional impact.
Mental health conditions must be assessed under Table 5 of the Tables, which is set out in Annexure A to these reasons. Five possible assignment ratings are available under this Table: nil (no functional impact), five (mild functional impact), ten (moderate functional impact), twenty (severe functional impact) and thirty (extreme functional impact). The rating to be assigned under Table 5 depends on whether the person has no/mild/moderate/severe/extreme difficulties with most of the six following activities:
(a)self care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making;
(f)work/training capacity.
In a report dated 20 November 2012 Ms Meylakh wrote that Ms Yakubova has “extreme functional impairment in body and mind, which interact with one another rendering her unfit for employment”. She wrote that Ms Yakubova’s “constant pain from many different sources” has disabled her “ability to be independent” and, as a result, she is “very impatient, angry and depressed”. In her opinion, Ms Yakubova’s condition causes “clinically significant distress and impairment in social, occupational and personal areas of her functioning, rendering her ability to work even more damaged”.
In contrast the job capacity assessor was of the opinion that the condition had a mild impact on Ms Yakubova. In a report dated 7 November 2011, she wrote:
The client lacks energy and experiences persistent low mood and anxiety. She is socially withdrawn and has difficulty coping with stressful situations. TDR states “disabled by mood swings” however there is little evidence to support this.
The client is particular with self care and meticulous with appointments and obligations. She continues to travel alone when necessary and continues to plan and organise household affairs.
The Assessor is of the view that this condition is [fully diagnosed, treated and stabilised]. Symptoms have been present since 2007 and the client has participated in the appropriate therapy. Complex contributing factors are likely to continue having an impact and the client is likely to continue experiencing intermittent episodic bouts of severe symptoms. The impact is considered mild.
Ms Yakubova testified that she did not discuss her condition of anxiety and depression with the assessor.
A difficulty posed in assigning an appropriate rating in this case is that while Ms Yakubova reports having difficulty undertaking many of the activities listed in Table 5, it is apparent that that difficulty on her account is primarily attributable to her physical conditions. For example, she attributes her reported inability to self-care, to problems with her arms. Similarly she largely attributes her reported lack of involvement in social and recreational activities largely to mobility restrictions.
While not the most clear cut of cases, in my opinion Ms Yakubova probably has moderate difficulties with the following activities: social/recreational activities, interpersonal relationships, concentration, task completion and planning and decision–making because of her claimed psychiatric condition. In reaching that conclusion I have had regard to the fact there is some evidence to suggest that Ms Yakubova has no difficulties with some of the activities that fall within these descriptors, for example in these proceedings she demonstrated an ability to prepare her case, gather evidence and reports, which suggests that she has some ability to complete tasks, plan and make decisions. While some of the limitations she reports, for example lack of social involvement, are also attributable to her reported physical impairments, I am satisfied that they are probably attributable in part to her psychiatric condition.
In my opinion a rating of ten points is appropriate.
CLAIMED CONDITION 3: MIGRAINE
The Secretary contends that in the absence of any evidence about the cause of Ms Yakubova’s migraines it cannot be characterised as permanent. Pointing to Dr Aristoff’s description of the condition in his initial report as being “generally well managed and that cause[s] minimal or limited impact on ability to function”, the Secretary submits that it cannot be assigned an impairment rating under the Tables. Ms Yakubova on the other hand contends that her migraine condition is permanent and can be assigned a rating under the Tables. She claims that Dr Aristoff had mistakenly characterised her migraine condition as one that causes minimal or limited impact on her ability to function and argues that it is unfair to rely on this answer to a “tricky” question.
In respect of the latter, the SSAT in its reasons for decision pointed to the discrepancy between Ms Yakubova’s self-report and Dr Aristoff’s comment (see par [43] Yakubova and Secretary, Dept. Families, Housing, Community Services and Indigenous Affairs and Anor (Unreported, Social Security Appeals Tribunal, Member Richardson, 15 April 2012). The Secretary also highlighted this point (see Statement of Facts and Contentions 27 September 2013 a at [49]). Ms Yakubova was given an adequate opportunity to address this issue if, as she contends, Dr Aristoff had made a mistake.
In these proceedings Ms Yakubova claimed that she suffers about three migraine attacks per week. On her account during these attacks she is forced to retreat to a darkened room and lie down for their duration, which she estimates to be, between 12 to 16 hours. The SSAT recorded that Ms Yakubova claims to experiences headaches almost daily. (Yakubova and Secretary, Dept. Families, Housing, Community Services and Indigenous Affairs and Anor (Unreported, Social Security Appeals Tribunal, Member Richardson, 15 April 2012 at [43]).
According to Ms Yakubova the only treatment recommended for the condition is medication for pain relief. She contends that the condition was investigated by neurologist Dr Teychenne, who told her “nothing could be done”. The reports prepared by Dr Teychenne referred to above (at [37]) do not specifically address Ms Yakubova’s migraine conditions.
Even if accepted that Ms Yakubova’s migraine condition could be characterised as permanent, given the absence of any reliable corroborating evidence, her self-report cannot be used as a basis to assign a rating under the Tables. Section 8 of the Tables instructs that the symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. Absent such evidence Ms Yakubova’s account of the extent to which she is disabled by her migraine condition, cannot be taken into account in assigning a rating under the relevant Table.
Claimed Condition 4: Polycystic ovary syndrome
There is no argument that Ms Yakubova was diagnosed as suffering from polycystic ovary syndrome during the claim period, the issue in dispute is whether that condition was fully treated and fully stabilised during that period.
According to Ms Yakubova she suffers crippling pain during and for a week before and after each period. She explains that she has a 23-day cycle and therefore at best there are only a few days in each month when she is not experiencing severe pelvic pain.
This account is at odds with Dr Aristoff’s description of the condition as one that is “well managed and that causes minimal or limited impact on ability to function”. While Ms Yakubova reported to gynaecologist Dr Jason Abbott a few months after the gynaecological surgery that she was experiencing ongoing pain, there is no reliable corroborative evidence that during the claim period Ms Yakubova suffered from the type of severe pelvic pain she described in these proceedings. In addition, absent some medical evidence I could not be satisfied as asserted by Ms Yakubova that her reported pain is solely attributable to polycystic ovary syndrome and is unrelated to uterine fibroids.
Even if the condition could be characterised as permanent in the absence of any corroborative evidence, a rating under the relevant Table could not be assigned.
CONCLUSION
Given my finding that Ms Yakubova does not have a permanent impairment of at least 20 points as assessed under the Table it is unnecessary to consider whether she satisfies the other criteria to qualify for DSP and therefore the decision under review must be affirmed.
I understand that Ms Yakubova and her treating doctor believe she is unable to work on account of multiple health problems. Parliament has set a high hurdle for persons claiming DSP and requires not only that the person suffer from health problems that impact on their functional capacity and ability to work, but that the underlying condition(s) be permanent, that is, fully diagnosed, treated and stabilised. It may be, as Ms Yakubova believes, in combination, her claimed conditions render her unable to work. But unless those conditions are permanent and singly, or in combination, attract a rating of 20 points under the Tables, she will not meet the criteria for a grant of DSP.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
.........................[SGD]...............................................
Associate
Dated 29 November 2013
Date(s) of hearing 11 and 15 November 2013 Applicant In person Solicitors for the Respondent Sparke Helmore ANNEXURE A
Table 5 – Mental Health Function
Introduction to Table 5
· 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:
- a report from the person’s treating doctor;
- supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
- interviews 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.
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
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.
10
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.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
30
There is an extreme functional impact on activities involving mental health function.
(1) The person has extreme difficulties with most of the following:
(a) self care and independent living;
Example 1: The person needs continual support with daily activities and self care.
Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.
(b) social/recreational activities and travel;
Example: The person is unable to travel away from own residence without a support person.
(c) interpersonal relationships;
Example: The person has extreme difficulty interacting with other people and is socially isolated.
(d) concentration and task completion;
Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.
Example 2: The person has extreme difficulty in completing tasks or following instructions.
(e) behaviour, planning and decision-making;
Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.
Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training sessions other than for short periods of time.
0
0
0