Searle Loughman and Secretary, Department of Social Services

[2015] AATA 220

[2015] AATA 220 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1287
Re	Searle Loughman
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	14 April 2015
Place	Sydney

The decision of the Social Security Appeals Tribunal, dated 11 March 2014, is affirmed.

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

Deputy President J W Constance

Catchwords

SOCIAL SECURITY – disability support pension – whether impairments fully diagnosed, treated and stabilised – whether impairments could be rated twenty or more impairment points – decision affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President J W Constance

14 April 2015 

INTRODUCTION

1. Mr Loughman applied for the Disability Support Pension on 5 July 2013.  The accompanying treating doctor’s report, completed by Dr Fajardo, stated that Mr Loughman suffered from the following conditions:

   (a)Coronary heart disease- atrial fibrillation; and

   (b)Depression/Anxiety.

2. On 11 March 2014, the Social Security Appeals Tribunal affirmed a determination by Centrelink to refuse Mr Loughman’s claim for the Disability Support Pension. This was on the basis that his conditions did not meet the required impairment rating of 20 points. Mr Loughman has applied to the Tribunal for a review of the decision of the Social Security Appeals Tribunal.

3. The Secretary accepts that, for the purpose of determining Mr Loughman’s entitlement to a pension, these are Mr Loughman’s relevant conditions.  However, the Secretary denies that Mr Loughman meets other eligibility criteria set out in the Social Security Act 1991 (Cth) and in the relevant Ministerial Determinations.

4. For the reasons which follow the decision of the Social Security Appeals Tribunal will be affirmed.

   LEGISLATION

5. To be entitled to the pension, Mr Loughman must show that he met the eligibility requirements on the day he applied for the pension (5 July 2013) or within the 13 weeks immediately following that day.[1]  I will refer to this period as “the relevant period”.  It ended on 4 October 2013.

   [1] See s.42 and clause 4 of Schedule 2 of the Administration Act.

6. Section 94(1) of the Act provides that to qualify for the pension:

   (a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and

   (b)the impairments must be rated at 20 points or more in accordance with the Impairment Tables; and

   (c)the person must have a continuing inability to work as defined in the Act.

   THE ISSUES

7. The Secretary accepts that Mr Loughman has the impairments to which I have referred. Therefore, the first issue for determination is whether these impairments can be accorded an impairment rating of 20 points or more.  If they do, it will then be necessary to determine whether Mr Loughman has a continuing inability to work.

   WHAT RATING IS APPLICABLE?

   The Impairment Tables

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

9. The following subparagraphs of clause 6 are relevant in relation to the assessment of impairment ratings:

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c) the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   6(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.

   Note: For reasonable treatment see subsection 6(7)..

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is 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.

10. In determining whether an impairment rating can be accorded to Mr Loughman’s conditions, it will be necessary to consider each in turn.

    Depression/Anxiety

11. The Secretary concedes that Mr Loughman’s condition was fully diagnosed, however argues that his mental health condition was not fully treated and stabilised during the relevant period. To this end, Mr Loughman provided a number of reports from his treating practitioners.

    Evidence

    Mr de Robillard, Psychologist

12. Mr de Robillard has treated Mr Loughman since October 2012.  In a report dated 8 June 2013,[2] Mr de Robillard records that Mr Loughman attended for 3 therapy sessions after his referral in October 2012. Mr Loughman then ceased to attend upon Mr de Robillard and only re-commenced therapy sessions in May 2013. He reported:

    Mr Loughman finds it very difficult to cope with pressure and his concentration ability has diminished. Although he would like to engage in some type of work, he is extremely anxious when he deals with people and lacks assertion. He felt that he has lost self esteem ... [He] tends to get stressed very easily and would keep away from people in order to avoid confrontation. He seems to lack social adaptation and would require ongoing psychotherapy in order to learn problem solving skills. ... He would need a high level of support and training in order to take on any basic type of work. [3]

    [2] Exhibit R1, p.360.

    [3] Exhibit R1, p.360

13. Mr de Robillard indicated, in a report dated 28 September 2013,[4] that Mr Loughman had attended 11 of what he described as “detailed and lengthy therapy sessions” since late 2012. He wrote that “these sessions of treatment are ongoing and continuing on a monthly basis”.

    [4] Exhibit R1, p. 381.

14. This therapy continued into 2014. In his report dated 12 April 2014,[5] Mr de Robillard stated that Mr Loughman, despite being compliant with therapy, had made minimal progress.

    Dr Fajardo, General Practitioner

    [5] Exhibit A1.

15. Dr Fajardo is Mr Loughman’s treating general practitioner. In two reports dated 12 February 2014,[6] and 19 May 2014,[7] he wrote that Mr Loughman’s anxiety and depression has made it difficult for him to search or apply for work. He wrote on both occasions that “His recommended therapy is to participate in counselling and he has been attending monthly over the past year”.

    [6] Exhibit R1, p.393

    [7] Exhibit A1.

16. In the Treating Doctor’s Report which accompanied Mr Loughman’s claim for Disability Support Pension, Dr Fajardo recorded Mr Loughman’s current, previous and future planned treatment as being “counselling”.[8] This description is consistent with an earlier report dated 6 May 2013.[9]

    Dr Attia-Soliman, medical practitioner

    [8] Exhibit R1, p. 254-255.

    [9] Exhibit R1, p. 221

17. Dr Attia-Soliman is a medical practitioner who Mr Loughman attended upon in 2011. In a report dated 8 March 2011,[10] she diagnosed Mr Loughman with “chronic dysthymic disorder and anxiety disorder”. She reported that Mr Loughman’s depressed mood had worsened since 2009:

    He has poor appetite. He has sleep disturbance. He feels irritable, forgetful and can’t concentrate. He feels tired, lethargic and lacks energy to face his day. He forces himself to get out of bed. He isolates himself.[11]

    [10] Exhibit R1, 49.

    [11] Exhibit R1, 49.

18. After Mr Loughman attended on her in about March 2011, Dr Attia-Soliman prescribed the antidepressant Avanza. She reported that she was monitoring his progress with psychotherapy, although Mr Loughman’s evidence is that he only attended upon Dr Attia-Soliman on a total of two occasions.

    Ms Hirst, clinical psychologist

19. Ms Hirst is a clinical psychologist, and provided two reports dated 30 January 2014,[12] and 30 May 2014.[13] Ms Hirst diagnosed Mr Loughman with “Generalised Anxiety Disorder ... and Persistent Depressive Disorder (Dysthymia)... with some features of Acute Panic Disorder”.

    [12] Exhibit R1 p.378.

    [13] Exhibit A1.

20. In her report dated 30 January 2014, Ms Hirst wrote that Mr Loughman had attended on her for two sessions of psychological therapy. She reported that “Mr Loughman’s fatigue, poor concentration, feelings of hopelessness, persistent worry, intrusive negative ideation and agitation are significant mental health issues”. The events prior to and including his retrenchment from work and his diagnosis with heart disease

    ... have caused Mr Loughman significant trauma that has significantly impacted his sense of self, self-esteem, feelings of hope, purpose and value. He has lost confidence and struggles with persistent worries and anxiety.[14]

    [14] Exhibit R1, p.380.

21. Ms Hirst confirmed in her latter report, dated 30 May 2014, that Mr Loughman attended two sessions with her on 29 and 30 January 2014 for the purpose of assessment and review.

    Mr Hugo Gonzalez, clinical psychologist

22. Mr Gonzalez, clinical psychologist, diagnosed Mr Loughman with “Adjustment Disorder with mixed depression and anxiety mood” in a report dated 14 May 2014.[15] He stated that the condition was the result of Mr Loughman’s “loss of his job of 36 years ... and his ischaemic heart condition”.

    [15] Exhibit R2, p.41.

23. Mr Loughman was, in Mr Gonzalez’s opinion, “becoming increasingly phobic, fearful and restricted in his everyday activity. He ... finds [it] difficult to develop flexibility to function in new situations”. He wrote that Mr Loughman’s current situation:

    Causes him to feel anxious and stressed. He currently finds it difficult to engage in relationships with others, and has become withdrawn and irritable.

24. With respect to Mr Loughman’s treatment, Mr Gonzalez recommended that Mr Loughman undertake Cognitive Behavioural Therapy to develop strategies to manage his anxiety and changes to his lifestyle resulting from his medical conditions.

    Other Medical Evidence

25. Mr Loughman attended Ms Petersen, psychologist, on five occasions from 2011 to early 2013. In a report dated 2 November 2012,[16] Ms Petersen stated Mr Loughman was referred to her in March 2011 by Dr Salama with a diagnosis of mixed anxiety and depression. She stated that she had not treated him for an extended period of time.

    [16] Exhibit R1, p.263.

26. The Tribunal also has before it two General Practitioner Mental Health Treatment Plans completed by Dr Balasingham on 24 January 2014,[17] and 24 August 2014.[18] Each recommends under the heading “Patient Action/Treatment” that Mr Loughman maintain his physical health by eating a balanced diet, performing regular exercise and limiting exposure to and consumption of cigarettes, alcohol and caffeine.

    [17] Exhibit A1.

    [18] Exhibit R2, p 6.

    Was Mr Loughman’s mental health condition fully diagnosed, treated and stabilised?

27. Based on the medical evidence, I am satisfied of the appropriateness of the Respondent’s concession that Mr Loughman’s condition is fully diagnosed. The remaining issue for me to determine is whether that condition was fully treated and stabilised.

28. The Respondent submits that the condition was not fully treated and stabilised as Mr Loughman had not had reasonable treatment for the condition. He had not been referred to a psychiatrist, nor had Mr Loughman been treated with medication other than for approximately one month in 2011.

29. Mr Loughman gave evidence that he took Avanza for 6 weeks in early 2011 on the recommendation of Dr Attia-Soliman. A report from Mr Loughman’s cardiologist, Dr Kiyingi, dated 25 August 2014, indicates that Mr Loughman was currently on Avanza. Nonetheless, it is clear from Mr Loughman’s evidence and the reports, that the six week period in 2011 was the only time Mr Loughman had taken anti-depressant medication for his condition prior to and including the relevant period.

30. Mr Loughman underwent 11 sessions with Mr de Robillard, psychologist, from October 2012 to September 2013. These sessions, however, were not across a continuous period. Mr Loughman stopped attending on Mr de Robillard not long after commencing treatment in 2012. He resumed treatment again in May 2013. This treatment, according to a number of reports of Mr Loughman’s general practitioner, Dr Fajardo, appears to be in the nature of counselling. In this respect, I note that Mr Gonzalez, clinical psychologist, in his report dated 14 May 2014, was of the opinion that cognitive behaviour therapy would be of benefit to Mr Loughman.

31. Mr Loughman’s entitlement to the pension must be assessed at the date of claim and within the 13 week period thereafter. Although Mr Loughman was being treated by Mr de Robillard through the relevant period, I am not satisfied that his condition was fully treated and stabilised. Such treatment appears to have only been in the nature of counselling, and had not taken place consistently after it was commenced some nine months earlier. The evidence also indicates that there had been only a very limited trialing of medication.

32. Mr Gonzalez, clinical psychologist, recommended in 2014 that Mr Loughman commence cognitive behaviour therapy. He expressed the opinion that such treatment would be beneficial to Mr Loughman. Taking this into account, along with the nature of the treatment received by Mr Loughman, I am not satisfied that his mental health condition was fully treated and stabilised. The treatment undergone by Mr Loughman was extremely limited in scope and had only recently recommenced prior to the relevant period. It is clear on the evidence before me also that reasonable treatment in the form of cognitive behaviour therapy could have led to an improvement in Mr Loughman’s condition.

33. In these circumstances, Mr Loughman’s mental health condition cannot be accorded a rating under the Impairment Tables.

    Atrial Fibrillation and Ischaemic Heart Disease

34. The Secretary accepts that this condition was fully diagnosed, treated and stabilised during the relevant period. The Secretary submits that it should be assigned an impairment rating of five points.

35. The relevant impairment table in assessing the functional impact of Mr Loughman’s coronary heart disease is Table 1 – Functions requiring Physical Exertion and Stamina.

36. Table 1 provides, in part:

    5 points - There is a mild functional impact on activities requiring physical exertion or stamina.

    (1) The person:

    (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

    (i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

    (ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

    (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

    10 points - There is a moderate functional impact on activities requiring physical exertion or stamina.

    (1) The person:

    (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

    (i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

    (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

    (b) is able to:

    (i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

    (ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

    20 points - There is a severe functional impact on activities requiring physical exertion or stamina.

    (1) The person:

    (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

    (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

    (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

    (iii) use public transport without assistance; or

    (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

    (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

37. Clause 10(5) of the Determination provides that where two conditions cause a common impairment they are to be assessed together under the relevant Table and assigned a single impairment rating. In this case the evidence suggests that both atrial fibrillation and ischaemic heart disease affect the functions of physical exertion and stamina. They are therefore to be assessed together under Table 1.

    Mr Loughman’s Evidence

38. Mr Loughman was asked about his condition during the relevant period. He stated that he could walk to his local shops (about half a mile) but had difficulty walking back home as it is uphill. He experienced shortness of breath and frequently had to stop and rest. When he returned home he needed to rest.

39. Mr Loughman was a member of a walking group in Merrylands for a short period in early 2014. The group walked around a local shopping centre. Mr Loughman could walk for what he described as “much less than 10 minutes at a time”.

40. Mr Loughman lives in an apartment up approximately 20 stairs. It took him a few minutes to ascend the stairs using the railing. His wife always waited for him at the top.

1. In terms of household chores, Mr Loughman would perform a lot of minor tasks. His wife prepared dinner, although he did small things to assist such as “getting a tomato out of the fridge”. He performed a little gardening, but did not perform tasks such as making the bed. He required assistance from his wife to shower “at times”.

2. Mr Loughman usually completed larger household chores over a series of sessions. He spread these sessions out across the course of a day. He was unable to sweep his balcony, which he described as approximately 8 metres by 12 metres, in one attempt. As a result of Mr Loughman experiencing shortness of breath, he would take five or six rests.

3. He had difficulty concentrating but was able to complete sedentary tasks like word puzzles, job applications and preparing papers for delivery on the paper run.

   Dr Kiyingi, Consultant cardiologist

4. Mr Loughman has been treated by Dr Kiyingi for ischaemic heart disease and atrial fibrillation since February 2011. He reported on 4 November 2011:

   The two conditions constitute permanent impairment and make the prospects of his obtaining gainful employment extremely unlikely. He is on appropriate medications and treatment but he will need to be under constant medical attention most probably for the rest of his life.[19]

   [19] Exhibit R1, p.96.

5. This opinion was reiterated in a report dated 25 April 2014.[20] In that report, Dr Kiyingi went on to state that:

   ... prospects of him getting gainful regular employment are extremely curtailed. He needs assistance when using private/public transport and definitely requires assistance from his wife and family in routine daily tasks.

   [20] Exhibit R2, p.2.

6. An earlier claim for the pension was lodged by Mr Loughman in 2012. Dr Kiyingi produced a report for the purposes of that claim dated 30 April 2012.[21] He stated that the symptoms of Mr Loughman’s atrial fibrillation at the time were “palpitations, dizziness, shortness of breath”. The condition caused Mr Loughman “anxiety, lethargy and a lack of concentration” and was expected to fluctuate over the following two years.

   [21] Exhibit R1, p.153.

7. In terms of Mr Loughman’s condition of ischaemic heart disease, Dr Kiyingi indicated he suffered symptoms of chest pain and shortness of breath. The condition limited Mr Loughman’s physical activity and was expected to fluctuate over the following two years.

   Dr Fajardo, General Practitioner

8. In his Treating Doctor’s Report dated 3 July 2013,[22] Dr Fajardo stated that Mr Loughman’s symptoms were “dyspnoea/shortness of breath – intermittent”. The condition affected Mr Loughman’s ability to function by causing “limitations on endurance”. Dr Fajardo did note however that this was “improving with meds”.

   [22] Exhibit R1, p 248.

   Consideration

9. Taking into account all of the evidence, in my view the maximum rating which could be applied to Mr Loughman’s conditions of atrial fibrillation and ischaemic heart disease is 10 points. I am not satisfied that he usually experienced symptoms when performing light physical activities, as required for a rating of 20. In his Treating Doctor’s Report which accompanied Mr Loughman’s claim for the pension, Dr Fajardo reported that Mr Loughman’s symptoms were intermittent. During the relevant period, he was able to perform sedentary tasks such as word puzzles, could perform light household chores, including gardening, and was capable of walking half a mile to the local shops. I accept that Mr Loughman experienced difficulties with physical activity on account of his condition. I am not satisfied, however, that these difficulties equated to a severe impairment as outlined in Table 1.

   CONCLUSION

10. In accordance with my findings above, Mr Loughman’s conditions cannot be accorded a rating of 20 or more impairment points. Mr Loughman did not satisfy subsection 94(1)(b) of the Social Security Act 1991 (Cth) at the date of his claim for the pension or in the 13 weeks thereafter.

11. The decision to refuse Mr Loughman’s claim for the Disability Support Pension will be affirmed.

12. It should be noted that this decision does not prevent Mr Loughman from making a further application for Disability Support Pension. Should Mr Loughman decide to lodge a new claim for the pension, his eligibility will be assessed by looking at his conditions as at the date he lodges a claim and in the 13 weeks following that date.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated 14 April 2015 

Date(s) of hearing	11 December 2014
Date final submissions received	11 December 2014
Applicant	In person
Solicitors for the Respondent	G Thangasamy; Department of Human Services