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

[2018] AATA 3194

Simmonds and Secretary, Department of Social Services (Social services second review) [2018] AATA 3194 (3 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3854

Re:Kara-Louise Simmonds

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:3 September 2018

Place:Canberra

The decision under review is affirmed.

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

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – rejection of claim – psychiatric condition – bilateral subacromial bursitis of the shoulders – whether conditions fully diagnosed, treated and stabilised – severity of psychiatric condition – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 37

Social Security Act 1991, ss 26, 94

Social Security (Administration) Act 1999, ss37, 42, Schedule 2

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drakev Minister for Immigration and Ethnic Affairs (No 2) (1979) 24 ALR 577

Moore and Secretary, Department of Social Services (Social services second review) [2017] AATA 1590

Pavlovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 1245

Tam and Secretary, Department of Social Services (Social services second review) [2017] AATA 1154

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Mark Hyman, Member

3 September 2018

1. This decision is about whether the applicant, Miss Kara-Louise Simmonds, should be granted disability support pension (DSP). Miss Simmonds claimed DSP in 2016, lodging a claim on 25 October of that year, but her claim was rejected by the Department of Human Services – Centrelink (the Department), and then rejected again twice on review, including most recently by the Social Services and Child Support Division of this tribunal. On 4 July 2017 Ms Wright applied to the General Division of the tribunal for further review.

2. The tribunal held a hearing on 9 July 2018. Miss Simmonds participated by telephone. Mr Jonathan Tsianikas, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. Miss Simmonds gave evidence and was cross-examined.

3. The documentary evidence before the tribunal comprised documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”); and a medical report and medication summary filed by Miss Simmonds (also provided by the Secretary, but identified as Exhibit A1).

   LEGISLATION

4. The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:

   94(1)  A person is qualified for 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)      one of the following applies:

   (i)  the person has a continuing inability to work;

   …

5. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

6. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. Section 6 of the Rules for Applying the Impairment Tables (the Rules) provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.    

7. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g., Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each Table is preceded by additional Rules governing how the Table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

8. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

1. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that to succeed in her claim Miss Simmonds must have been qualified in the period from 25 October 2016 to 24 January 2017 (Miss Simmonds evidently made enquiries regarding the submission of a claim in the period from September 2016, and her claim form is undated, but the evidence confirms that the date of lodgement was 25 October 2016[1]). The significance of the qualification period was explained in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   … it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

   [1] T38, folio 186.

   ISSUES

2. The issues before the tribunal in this matter are:

   ·whether Miss Simmonds has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether she has a continuing inability to work.

   MISS SIMMONDS’ CONDITIONS

3. Miss Simmonds has been diagnosed with a mental health condition and a physical condition. The diagnosis of the mental health condition has varied among her treating doctors, with post-traumatic stress disorder (PTSD), bipolar disorder, anxiety and depression and a personality disorder all appearing in the documentation before the tribunal. The physical condition is diagnosed as subacromial bursitis of both shoulders.

   Mental health condition

4. Miss Simmonds has evidently suffered from mental health problems for some time. A Job Capacity Assessment undertaken by the Department of Human Services – Centrelink (the Department) in 2009[2] notes that she had been diagnosed with anxiety and depression by her then general practitioner (GP), Dr Quail, and that she had suffered off and on with depression since she was 16 years old. A medical certificate[3] dated 12 November 2012, signed by her then GP, Dr R Rifat, gives a diagnosis of bipolar disorder and identifies treatment as medication and counselling. A report from a doctor at Echuca Regional Health[4] dated 10 September 2015 notes that Miss Simmonds had presented looking “quite distressed” with a deteriorating mental state against a background of a long history of depression. The report notes that Miss Simmonds had stopped taking her medication a week previously, had “thrown out her Valium” but had current scripts for Avanza and Seroquel. Miss Simmonds was described as “teary” and “tired looking”, and the doctor advised that she should restart her medication.

   [2] T5, folio 75.

   [3] T8, folio 79.

   [4] T9, folio 80.

5. On 20 September 2016 Dr Rifat referred[5] Miss Simmonds to Deniliquin Mental Health Treatment. He recorded Miss Simmonds as having “rapidly deteriorating mental health”, bipolar disorder with associated anxiety and possible personality disorder. He noted that she was non-compliant with medications and had stopped taking medication on more than one occasion. She was seeing a counsellor. About a fortnight later, on 3 October 2016, an unnamed mental health social worker (the name is redacted) reported to the Department[6] that Miss Simmonds had extremely severe depression, anxiety and stress when assessed against the Depression, Anxiety and Stress Score (DASS-21). The social worker accepted Dr Rifat’s diagnosis of bipolar disorder, depression and anxiety and noted that Miss Simmonds was “unable to manage” many of the problems she was facing (such as her mother’s health, her financial distress); had poor concentration, was not eating and had considerable problems being able to sleep. The social worker took the view that she would not be able to cope with any form of employment (the report in fact says that she “would be able” to cope with employment, but in context it is clear this statement was made in error, and the opposite was intended).

   [5] T20, folio 94.

   [6] T21, folio 96.

6. A week later, on 10 November 2016, Dr Rifat sent a report to the Department[7]. The report states that Miss Simmonds had been treated for mental health issues since 2006; and that her diagnosis was anxiety, depression and bipolar disorder with the possibility of personality disorder. The report also noted a traumatic childhood with alleged sexual and physical abuse by Miss Simmonds’ father and an absence of psychotic behaviour but a labile mood, poor self-worth and problems of appetite. Dr Rifat states that Miss Simmonds “has never been very consistent with her medical treatment, and frequently would stop her medication or would take them very erratically”, and was resistant to counselling. Dr Rifat concluded that Miss Simmonds was “without a doubt totally disabled from any occupation for the foreseeable future”, not capable of retraining, and until she was consistent and persistent with her treatments (counselling and medication), “her prognosis remains very poor”.

   [7] T22, folio 98.

7. At this time Miss Simmonds was yet to see a psychiatrist, but she saw Dr Paul Friend, a consultant psychiatrist at Murrumbidgee Local Health District by videoconference, and he reported to Dr Rifat on 29 November 2016[8]. Dr Friend’s report focuses on the previous sexual abuse by Miss Simmonds’ father and despite specific questioning he was unable to find symptoms of elevated mood, of the kind associated with mania. He diagnosed PTSD, with a secondary major depression with melancholic features. He recommended significant changes in the medications prescribed for Miss Simmonds, including some experimentation to determine the right drugs, dosages and combinations. A note of 30 January 2017 from Ms Katie Wright, a psychologist at the Deniliquin Sexual Assault Service, records that Miss Simmonds had attended counselling at the service since November 2016 and would continue to attend counselling sessions there.

   [8] T29, folio 149.

8. The Department put some questions about Miss Simmonds’ conditions to Dr Rifat, who responded in a letter dated 17 February 2017[9]. Dr Rifat said that Miss Simmonds’ mental health problems had been with her since her teens; that he expected the condition to persist for at least two years; that a variety of psychotropic medications had been trialled in combinations, but that the condition was resistant to treatment; that counselling by psychologists and psychiatrists had also been attempted but this course of treatment was limited because of its expense; that Miss Simmonds was not compliant with her medication; that her condition would improve if she could persist and be compliant with her medication and counselling; and that it was the condition itself that limited the consistency of medical treatment, both medication and counselling.

   [9] Exhibit A1.

   Shoulder condition

9. In early 2016 Miss Simmonds was referred to a radiologist because of pain and restricted movement in her shoulders, with suspicion of rotator cuff injury. A report of 3 March 2016[10] notes normal bony alignment and no bony predisposing factors to impingement on X-ray, but bilateral subacromial bursitis with impingement on abduction on ultrasound. There was no rotator cuff tendinosis. Dr Rifat’s letter of 10 October 2016[11] notes the bursitis but also mentions rotator cuff tendinosis (presumably in error). He attributes the condition to repetitive movement and lifting involved in aged care (Miss Simmonds’ previous employment) and suggests that she is “developing elements of frozen shoulders”.

   [10] T12, folio 83.

   [11] T22, folio 99.

10. Miss Simmonds had further imaging in November 2016. A radiologist’s report of 17 November 2016[12] records an absence of findings again on X-ray (normal alignment without fracture, dislocation or calcification) but findings on ultrasound, namely mildly thickened subacromial subdeltoid bursa, with painful bursal bunching on abduction. Dr Rifat referred Miss Simmonds to a physiotherapist on 30 November 2016, noting her shoulder pain, restriction of motion and minimal abnormalities on imaging and that she had recently had a steroid injection to the right shoulder without relief. Further imaging dated 19 December 2012[13] found once again no abnormalities on X-ray, but subacromial impingement of the subacromial bursa and tendinosis of the rotator cuff, but no tearing.

    [12] T30, folio 154.

    [13] T31, folio156.

11. Dr Rifat issued a series of medical certificates[14] beginning in March 2016 in which shoulder bursitis was identified as one of the conditions affecting Miss Simmonds’ fitness for work. In each case the condition is described as “temporary”, symptoms of the condition are given as “severe shoulder pain with limitation of motion”, and the prognosis is identified as “excellent”.

    [14] T13, T14, T15, T16, T17, T19, folios 84-91, 93.

12. In his letter of 17 February[15] in response to the Department’s questions, Dr Rifat stated that the first diagnosis of a shoulder condition was in 2012; that the condition would last for at least two years; that treatment was steroid injections, anti-inflammatories and limited physiotherapy, none of which had provided much relief; Miss Simmonds was no more adherent to treatment for her shoulder than for her mental health condition; and that she would benefit from further injections or hydro-dilation followed by physiotherapy.

    [15] Exhibit A1.

    CONSIDERATION

13. The Secretary does not contest that Miss Simmonds has one or more impairments, and satisfies paragraph 94(1)(a) of the Act. Whether Miss Simmonds meets paragraph 94(1)(b) of the Act depends on whether her conditions pass the tests for permanence and severity set by the Impairment Tables, as set out above.

    Is Miss Simmonds’ psychiatric condition fully diagnosed, treated and stabilised?

14. Miss Simmonds saw Dr Friend in November 2016 – within the qualification period – and obtained a diagnosis of PTSD, with a secondary major depression with melancholic features. The introduction to Table 5 of the Impairment Tables, dealing with Mental Health Function, requires that a diagnosis of a mental health condition for DSP purposes be made by a psychiatrist or with input from a clinical psychologist. Dr Friend’s diagnosis meets that requirement. The diagnosis is different from that made by Dr Rifat, but for more than one reason that difference can be set aside: Dr Rifat is not a specialist in mental health, so far as the documentation available to me discloses; and in any case it is very common for one psychiatrist to arrive at a diagnosis that is different from that made by another. I am satisfied that Miss Simmonds psychiatric condition is fully diagnosed, and so find.

15. It is less clear that the condition is fully treated and fully stabilised. It is acknowledged widely in the documentation for this matter that Miss Simmonds has a significant problem with compliance with her treatment regime. In other cases, non-compliance has been accepted as an indication that a condition is not fully treated and stabilised, in that non-compliance could compromise or reduce the person’s functionality (see for example Pavlovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 1245; Tam and Secretary, Department of Social Services (Social services second review) [2017] AATA 1154; Moore and Secretary, Department of Social Services (Social services second review) [2017] AATA 1590. In this case, however, there is clear evidence from Dr Rifat[16] that it is Miss Simmonds’ psychiatric condition itself that has made it more difficult to comply – that is, her failure to maintain treatment is in a sense a symptom of the psychiatric condition from which she suffers.

    [16] Exhibit A1.

16. Subsection 6(6) of the Rules sets out in greater detail how the term “fully stabilised” is to be understood. Generally speaking, a person must have undertaken reasonable treatment for their condition, to the point that significant functional improvement allowing the person to work is not expected in the next two years. The subsection recognises, however, in subparagraph 6(6)(b)(ii), that a condition may be fully stabilised for the purposes of the Act even if the person has not undertaken reasonable treatment, if “there is a medical or other compelling reason for the person not to undertake reasonable treatment”. The Guide to Social Security Law (the Guide) at 3.6.3.05 elaborates on circumstances under which that test might be met, including where the person “lacks insight or the ability to make appropriate judgements due to their medical condition and are unlikely to comply with treatment”. The Guide is not binding on the tribunal, but is policy that the tribunal should follow unless it is inconsistent with the Act, or the merits of the particular case demand a departure: Drakev Minister for Immigration and Ethnic Affairs (No 2) (1979) 24 ALR 577.

17. In this instance, with a longstanding condition and a history of episodic non-compliance, it seems to me that it is reasonable to regard Miss Simmonds as meeting the above descriptor. I find her psychiatric condition to be fully treated and fully stabilised.

    Psychiatric condition – severity

18. Miss Simmonds’ condition is rated against the criteria set out in Table 5, and the descriptors and examples in those criteria. The table assesses the severity of a mental health condition against six areas of a person’s everyday living, in order to form an opinion on how severely a person’s ability to function in the normal processes of life is affected by mental illness. The evidence available regarding Miss Simmonds is limited (the Introduction to Table 5 does not allow me to rely on Miss Simmonds’ self-report, but requires corroboration), but from the totality of the evidence a reasonably well-founded picture emerges:

    (a)Self-care and independent living – Miss Simmonds has trouble sleeping, and is at risk of losing weight because she does not always eat[17], and she frequently appears in tears and dishevelled[18]; but she lives in her own home and cares for herself, and no treating professional has suggested that she needs a support person regularly or continually. She is mildly affected.

    (b)Social/recreational activities and travel – Miss Simmonds does not like to go out, beyond her doctors and family; she is prone to panic attacks[19] and at such times needs a place of refuge such as her home or that of her mother. So far as the evidence discloses, she is moderately affected.

    (c)Interpersonal relationships – Miss Simmonds has a very limited circle but maintains relationships with her family, including a son (about whose drug problems she expresses concern), a sister (who is intolerant of her mental health issues) and her mother (whose health is a major issue)[20]. But Dr Friend reports that she would be unable to have an intimate relationship because of past sexual abuse. She is moderately affected.

    (d)Concentration and task completion – Miss Simmonds has great difficulties with concentration and it appears that she would have difficulty in completing most tasks of any length. She is constantly tired because of poor sleep patterns and is sometimes overwhelmed by her surroundings[21]. Based on the evidence and the guidance in the Table, it appears that she is moderately affected.

    (e)Behaviour, planning and decision-making – Miss Simmonds is reported by all her treating professionals as having difficulty coping, being given to withdrawal and spending time in a distressed or depressed state[22]. She is moderately affected.

    (f)Work/training capacity – Miss Simmonds is described by all her treating professionals as highly unsuited to the workplace, because of the difficulty of adequately controlling her emotional state and thought processes. She would be unable to attend a workplace or training facility unless her compliance with treatment improved very considerably. She is severely affected.

    [17] T21, folio 97, T22, folio 99, T29, folio 149, exhibit A1.

    [18] Exhibit A1.

    [19] T29, folio 150, T22, folio 99.

    [20] T29, folio 150.

    [21] T29, folio 152.

    [22] T29, folios 151, 152, T22, folio 99, T21, folio 97, exhibit A1.

1. The Table assigns points according to severity against the above six areas. The rating depends on assessment of where most (i.e. more than half) of the severity findings rest; if most of the assessments are mild, the overall rating is 5 points, with 10 points for moderate, 20 for severe and 30 for extreme. In Miss Simmonds’ case, one assessment is mild, four are moderate and one is severe. That aligns with the ratings urged on me by Mr Tsianikas for the Secretary, and it flows reasonably straightforwardly from the available evidence. I find that Miss Simmonds is moderately affected by her psychiatric condition and I assign her 10 points under Table 5.

   Is Miss Simmonds’ shoulder condition fully diagnosed, treated and stabilised?

2. By the end of the qualification period Miss Simmonds’ shoulder condition had received a referral to a physiotherapist, with no evidence that that referral had been acted on, except for Dr Rifat’s assurance that she had had “limited physiotherapy”. Otherwise, treatment had comprised steroid injections and anti-inflammatory medication. Dr Rifat acknowledged that other treatment options remained available, and in his medical certificates always described the condition as temporary with an excellent prognosis. I therefore cannot find the condition to be fully treated and fully stabilised. I cannot rate the condition under the Impairment Tables.

   CONCLUSION

3. Miss Simmonds has a total rating of 10 points. She does not have 20 points under the Impairment Tables and therefore does not meet paragraph 94(1)(b) of the Act. As a person must meet all of paragraphs 94(1)(a), (b) and (c), Miss Simmonds does not qualify for DSP. I do not need to consider whether Miss Simmonds meets the requirements of paragraph (c) regarding a continuing inability to work.

4. The decision under review is affirmed.

31.     I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of  Member Mark Hyman

32.      

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

Associate

Dated: 3 September 2018

Date(s) of hearing:	9 July 2018
Solicitor for the Applicant:	Self-represented
Solicitors for the Respondent:	Department of Human Services