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

[2017] AATA 2747

Russell and Secretary, Department of Social Services (Social services second review) [2017] AATA 2747 (15 December 2017)

Division:GENERAL DIVISION

File Number:2017/0727           

Re:Timothy Russell   

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:15 December 2017

Place:Sydney

The decision under review is affirmed.

.......................[sgd]..............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – impairment tables – whether condition is fully diagnosed, treated and stabilised – whether impairment rates 20 points under impairment tables – osteoarthritis – bipolar disorder – anxiety –  depression –  diabetes – hearing loss – bronchitis – mental health function – upper limb function – lower limb function  – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth), s118

Social Security Act 1991 (Cth), ss 4, 27, 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

15 December 2017 

INTRODUCTION

1. The applicant, Mr Timothy Russell, was in receipt of the disability support pension.

2. On 25 August 2016, the Department of Human Services (Centrelink) decided to cancel Mr Russell’s disability support pension on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 20 September 2016.

3. Mr Russell subsequently applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 12 January 2017, the SSCSD affirmed Centrelink’s decision to cancel Mr Russell’s disability support pension.

4. On 10 February 2017, Mr Russell applied to the General Division of the Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 29 November 2017. Mr Russell attended the hearing in person and gave oral evidence.

   RELEVANT LEGISLATION AND ISSUES

6. The power for the Secretary to cancel Mr Russell’s disability support pension is contained in subsection 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). In accordance with subsection 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case on 25 August 2016 (the date of cancellation).

7. Pursuant to subsections 27(3) and (4) of the Act, in assessing whether Mr Russell qualified for the disability support pension at the date of cancellation, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

8. Subsection 94(1) of the Act provides that a person qualifies for the disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)the person has a continuing inability to work as defined by the Act.

9. Mr Russell had to satisfy these criteria at the date of cancellation.

10. The Secretary concedes, and the Tribunal agrees, that Mr Russell suffers medical conditions that cause impairment and therefore, satisfied paragraph 94(1)(a) of the Act at the date of cancellation.

11. It follows that the determinative issues in this matter are whether, at the date of cancellation, Mr Russell had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    Does Mr Russell have medical conditions that can be rated at 20 points or more under the Impairment Tables?

12. The Impairment Tables Determination requires that an impairment rating can only be assigned if the condition causing impairment is ‘permanent’. As set out in subsection 6(4) of the Impairment Tables Determination, a medical condition is permanent if it:

    ·has been fully diagnosed; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

13. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified medical practitioner; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

14. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment. An impairment can be rated between nil and 30 points, depending on how it affects a person’s ability to function.

15. The introduction to each Impairment Table states that a person’s self-report of symptoms alone ‘is insufficient’ and there ‘must be corroborating evidence of the person’s impairment’.

16. Relevant to this matter, the introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that 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).

17. The evidence before the Tribunal shows that Mr Russell has the following medical conditions:

    ·mental health conditions – depression, anxiety and bipolar disorder;

    ·osteoarthritis and knee injury;

    ·other conditions including bronchitis, hearing loss and diabetes.

18. I now consider each of Mr Russell’s medical conditions and the relevant rating in accordance with the Impairment Tables.

    Mental health condition

19. Mr Russell’s mental health condition is long-standing. Dr Mary Joseph (general practitioner) provided a treating doctor’s report on 16 August 1996 stating that Mr Russell had suffered from depression for eight years, was ‘unable to concentrate’ and ‘unable to complete tasks’, and was being treated by Dr Martinez, a consultant psychiatrist.[1]

    [1] Exhibit T10.

20. A hand-written report by Dr Martinez (consultant psychiatrist) on 12 November 1996, diagnosed Mr Russell with ‘reactive depression’, which had been treated since 16 April 1996.[2]

    [2] Exhibit T12.

21. Dr M B Lamond (general practitioner) provided a medical history on 26 November 1996, which noted:

    He has suffered from Depression for 8 years since the breakup of his marriage. He has only seen his children 4 times since then. Then in 1992, his fiancée was murdered in Hawaii. He sees a psychiatrist every fortnight for counselling but does not take any medication. He has had a significant past history of drug and alcohol abuse…and he feels this has had a long-term effect on his concentration and memory.[3]

    [3] Exhibit T13.

22. Mr Russell undertook a psychological assessment on 6–7 May 1997, which revealed he had ‘significant impairments of memory, concentration, learning and problem-solving ability’, and ‘perceived himself to experience extensive psychological and psychiatric symptoms relating to depression, anxiety and psychosis’. Ms Elizabeth Allworth (psychologist), who undertook the assessment, concluded that she was unable to give Mr Russell an impairment rating based on his cognitive functioning. She noted that while Mr Russell’s ‘test results pointed to substantial impairment, this is not matched with his full independence in work and daily living tasks in the past four years’.[4]

    [4] Exhibit T14.

23. I have also had regard to multiple medical reports and certificates completed by:

    ·Dr Joseph, dating from 16 August 1996 to 30 November 2017;

    ·Dr Tonse Prasad (general practitioner), which date from 28 April 2010 to 24 November 2017;

    ·Dr Barbara Cyrta (general practitioner), dating from 26 September 2012 to 27 November 2017.

    These reports further verify the long-standing nature of Mr Russell’s mental health condition and note that he suffers from severe bipolar disorder with depressive episodes.

24. In 2015, Mr Russell applied for portability of his disability support pension. A Centrelink staff member spoke to Dr Joseph on 30 June 2016, who reported the following symptoms and functional impact of Mr Russell’s mental health condition:

    [He] is independent in his activities of daily living. [He]…may sometimes neglect showering in winter. [He] can travel independently, but dislikes public transport. [He] has a history of family issues, including lack of contact with his children. [He] talks a lot which may impact on interpersonal relationships and possibly conflicts at work. [His] depressive symptoms ‘can get bad’ at times… [He] ‘lives in a world of his own’ but is okay with activities of daily living and is not at risk of harming himself or others… [He has] possible issues with comprehension, but [Dr Joseph] attributes this to him residing alone and not having enough mental stimulation…[5]

    [5] Exhibit T64.

25. Mr Russell attended appointments with Dr Goran Stevans (consultant psychiatrist) in 2017. Dr Stevans provided two reports dated 3 February 2017 and 5 June 2017; both reports stated:

    On Mental State Examination, Mr Russell appeared of stated age, overweight built, clean casual dress, was kempt and groomed, polite and cooperative, no signs of psychomotor disturbance, maintained good eye contact, engaged well in the interview, had spontaneous speech with good prosody and no latency of response, established good rapport, was eurythmic, had a reactive aspect, appropriate to the content of the conversation, had no formal thought disorder, had no delusions, no negative cognitions were present, not suicidal, no perceptual abnormalities, good insight and judgement, oriented to time, place and person.[6]

    Dr Stevans diagnosed Mr Russell with anxiety disorder and bipolar II disorder.

    [6] Exhibits A4 and A5.

26. Mr Russell also provided the Tribunal with reports from Ms Julia Conte (clinical psychologist) and Ms Andrea Little (psychologist), both of whom he saw in 2017.

27. A report by Ms Little on 9 August 2017 confirmed Mr Russell has been participating in psychological counselling during 2017. She observed that in a session with Mr Russell on 3 August 2017:

    [His] psychological presentation appeared to be manic, leading to a possible diagnosis of Bipolar Disorder. This was indicated by his abnormally elevated mood, distractibility, continuous flow of loud and forceful speech with abrupt shifts from one topic to another, rapid shifts in mood, and excessive optimism and grandiosity.[7]

    [7] Exhibit A8.

28. At the Tribunal on 29 November 2017, Mr Russell was able to participate in his hearing for more than three hours, although his mood varied between friendly/cooperative, distressed/crying and angry/frustrated. Mr Russell told the Tribunal he lives alone, although believes he requires a carer as he is unable to look after himself. He noted he feels unable to clean his home or cook for himself. He currently has a friend living in a van outside his home, who assists him with mowing the lawn and gardening. Mr Russell and his elderly neighbour also check on each other most days.

29. Mr Russell told the Tribunal that his mental health had deteriorated after he lost his driver’s licence in April 2016 due to driving under the influence of alcohol. He said that no longer being permitted to drive has limited his social activities. However, he leaves his house most days to walk 15 minutes to McDonalds for breakfast and regularly travels by bus to Cronulla Beach or Miranda Westfield. He was able to travel by bus and train to the city for his hearing at the Tribunal.

30. Mr Russell acknowledged he maintains friendships both in Australia and overseas through his past surfing experiences, although he feels these friendships are decreasing. He has travelled regularly to Bali since 1976. Most recently, he travelled to Bali for seven weeks in July and August 2016; he was in Bali when his disability support pension was cancelled on 25 August 2016. Mr Russell said that he feels mentally better when he is in Bali as he stays with friends, eats well and is able to walk along the beach and swim.

31. Based on the medical evidence before the Tribunal, I am satisfied that Mr Russell’s mental health condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. I particularly note the diagnosis and treatment of Mr Russell in 1996 by Dr Martinez, a consultant psychiatrist.

32. Having regard to the information at Table 5 – Mental Health Function, I am satisfied that Mr Russell’s mental health condition had a mild functional impact on activities involving his mental health function and I assign an impairment rating of 5 points. In making this assessment, I have regard to subsection 11(4) of the Impairment Tables Determination, which states that episodic and fluctuating conditions should reflect ‘the overall functional impact of those impairments’.

    Osteoarthritis

33. Dr Joseph reported on 16 August 1996 that Mr Russell suffers from generalised arthritic pain.

34. On 30 June 2016, Dr Joseph provided additional medical evidence to a Centrelink staff member, which confirmed Mr Russell had osteoarthritis in his knees, ankles and upper limbs that had been exacerbated by multiple past sporting injuries. Dr Joseph reported that Mr Russell:

    …is able to undertake most activities involving upper limb function (including buttons, zips, lifting 2 litre containers…). She confirmed [he]…would have difficulty writing for long periods.

    [He] is able to stand for approximately 30 minutes at a time before being restricted by knee/lower limb pain; does not require a walking aid; experience[s] difficulty with hills; and is able to walk to his bus stop of 1 km with some difficulty. Knee pain and fatigue was reported to restrict prolonged physical tasks.[8]

    [8] Exhibit T64.

35. Dr Cyrta provided reports on 24 March 2017 and 28 July 2017, which set out a comprehensive review of Mr Russell’s medical history.[9] As Dr Cyrta has treated Mr Russell since 2006, I have regard to this information even though these reports were written seven months and 11 months after the cancellation of Mr Russell’s disability support pension. Dr Cyrta reported that Mr Russell had a work-related injury to his right knee in November 1988 and has had two arthroscopies and a partial medial meniscectomy. He also underwent a right knee unicompartmental replacement in 2013. Dr Cyrta stated Mr Russell continues to suffer from bilateral knee pain which is treated with analgesics, Voltaren and Indocid. He suffers from frequent attacks of acute gout affecting his elbows and ankles. He has bilateral flat feet, difficulty walking and joint pain.

    [9] Exhibits A9 and A10.

36. At the Tribunal hearing, Mr Russell confirmed that he is able to pick up and carry his backpack (which contained at least two kilograms of papers on the day of his Tribunal hearing), wash his hair, dress himself and lace up his shoes. He demonstrated that he had no difficulty picking up papers or removing cards/cash from his wallet. Mr Russell said he is able to walk for one kilometre each morning from his home to McDonalds, which takes about 15 minutes. He said he sometimes uses a walking stick or a shopping trolley to assist him; however, this has only occurred recently. He said that when he was in Bali in August 2016 he was able to ride a motorcycle, walk along the beach and swim.

37. Based on the medical evidence, I am satisfied that Mr Russell has osteoarthritis and related conditions that affect his upper limbs and his lower limbs. I find this condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation.

38. In accordance with Table 2 – Upper Limb Function, I assign nil points because Mr Russell is able to pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty. As there is no evidence that Mr Russell had difficulty with picking up a two-litre carton of liquid, handling small objects or reaching out to pick up an object, I am unable to assign a higher rating of points.

39. I also have regard to the information set out in Table 3 – Lower Limb Function of the Impairment Tables Determination. While I accept that Mr Russell has pain in his lower limbs due to his long-standing knee injury and his osteoarthritis, his evidence to the Tribunal (which is consistent with Dr Joseph’s evidence to Centrelink) satisfies the descriptors for nil points because he is able to walk for 15 minutes, stand for 10 minutes and climb one flight of stairs without significant difficulty.

    Other conditions

40. Dr Prasad’s medical report for disability support pension review for portability dated 30 June 2016 referred to Mr Russell having chronic bronchitis, hearing issues and a dysfunctional liver.

41. At the Tribunal hearing, Mr Russell stated that he had not suffered from bronchitis for a long time. He said he needs to use ‘aqua ear’ before and after swimming, but he does not require hearing aids and acknowledged he had no difficulty participating in the hearing. He said he has been diagnosed with diabetes this year.

42. Due to the minimal medical evidence before the Tribunal, I am unable to assign any points for these conditions in accordance with the Impairment Tables Determination.

    CONCLUSION

43. For the reasons set out above, I am satisfied that Mr Russell did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period as his impairments were not rated at 20 points or more under the Impairment Tables.

44. As I find that Mr Russell did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

45. If Mr Russell’s circumstances change, he is entitled to submit a new application for the disability support pension.

    DECISION

    The decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

......................[sgd]..................................................

Associate

Dated: 15 December 2017

Date(s) of hearing:	29 November 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services