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

Syler and Secretary, Department of Social Services (Social services second review) [2018] AATA 3467 (11 September 2018)
Division:GENERAL DIVISION
File Number: 2016/5804
Re:Marianne Syler
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:11 September 2018
Place:Sydney

The reviewable decision is affirmed.
...............[sgd].........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – mental health condition – lumbar spinal pain – whether applicant’s conditions rated at 20 points or more under Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Disorders, Fourth Edition, Text Revision (American Psychiatric Association, Washington, 2000)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
11 September 2018
WHAT THIS DECISION IS ABOUT

On 20 September 2016, the Social Services & Child Support Division of this Tribunal (AAT1) affirmed a decision that Ms Syler did not qualify for Disability Support Pension (DSP). She has asked this Tribunal to review the decision of AAT1.
Ms Syler applied for DSP on 6 November 2015. The Department of Social Services refused the application on 16 March 2016 and an Authorised Review Officer (ARO) affirmed that refusal decision on 4 May 2016. Ms Syler then applied to AAT1 for review of the ARO’s decision, and more recently to this Tribunal to review the decision of AAT1 dated 20 September 2016.
WHAT THE TRIBUNAL HAS TO DECIDE
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria that Ms Syler has to satisfy to qualify for DSP at the time of or within 13 weeks of lodging her claim for DSP, that is in the period beginning 6 November 2015 and ending 5 February 2016 (the qualification period). They are:
·Does she have any impairments?
·Is each impairment permanent, that is:
ohas it been fully diagnosed by an appropriately qualified medical practitioner; and
obeen fully treated and stabilised, and
ois more likely than not, to persist for more than two years?
·If so, do the impairment(s) rate at least 20 points under the Impairment Tables;[1] and
·If so, does Ms Syler have a continuing inability to work?
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The Secretary, Department of Social Services, (the Secretary) accepts that Ms Syler has met the Program of Support (POS) requirements.
WHAT INFORMATION DID THE TRIBUNAL CONSIDER?
The Tribunal has taken into account the documents provided by the Secretary pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), additional material provided to the Tribunal by both Ms Syler and the Secretary, including several medical reports dated 2017 that Ms Syler provided, and her oral and written evidence. The Tribunal was also assisted by submissions from both parties.
The Tribunal emphasises that it has to make findings whether Ms Syler satisfied the qualification criteria during the qualification period. Therefore, evidence before and after that period is relevant to the extent that it provides information that casts light on Ms Syler’s conditions during the qualification period.
DID MS SYLER HAVE ANY IMPAIRMENT/S DURING THE QUALIFICATION PERIOD?
In her claim for DSP, Ms Syler listed her disabilities as:
Small midline slightly left sided focal L5/S1 disc protrusion causes left sciatica
Anxiety & Depression
“Impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[2] The Secretary accepted that Ms Syler suffered from two conditions during the qualification period: depression and anxiety, and lumbar spinal pain, and accepts that those conditions resulted in impairment. The Tribunal is satisfied that is correct. Ms Syler satisfies the first criterion.
[2] The Impairment Tables, Part 1, cl. 3.
ARE MS SYLER’S IMPAIRMENTS PERMANENT AND RATE AT LEAST 20 POINTS UNDER THE IMPAIRMENT TABLES?
The Tribunal considers each condition separately.
Anxiety and Depression
Ms Syler had been regularly participating in psychological counselling with Ms Zhang, a registered psychologist, for more than six years when she appeared at the hearing before the Tribunal. Several reports from Ms Zhang were in evidence, including one dated 3 November 2015. Her report states that Ms Syler began seeing her in May 2011 for psychological counselling for the treatment of depression and anxiety. Ms Zhang wrote:
She presented with severe symptoms of anxiety and PTSD including irritability sleep disturbances, hypersensitivity, panic attacks, mood fluctuation, reduced concentration and memory, excessive worrying, suicidal ideation and social withdrawal. Marianne also experiences chronic back pain which exacerbates her depression and anxiety.
Over the past four years, although Marianne attended regular counselling sessions, she has not been able to make consistent progress due to ongoing external stresses
In her 19 September 2017 report, Ms Zhang wrote:
Due to various external circumstances, she has not been able to make significant progress.
Ms Zhang set out those external circumstances.
The Secretary argued that this condition was not fully diagnosed during the qualification period. It relied on the introduction to Table 5 – Mental Health Function of the Impairment Tables which states:
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).
The Secretary also argued that if the Tribunal accepted that the condition was fully diagnosed, it had not been fully treated and stabilised.
There were no reports or evidence from a clinical psychologist before the Tribunal. The Tribunal has taken into account that in his report dated 21 August 2017, Dr Wrigley, Senior Staff Specialist & Supervisor of Training – Pain Medicine, states that the specialist pain team included a clinical psychologist. There were two reports from psychiatrists before the Tribunal.
In order to understand those two psychiatric reports, it is necessary to briefly explain the “multiaxial system” of assessment set out in the Diagnostic and Statistical Manual of Disorders Fourth edition Text Revision (DSM-IV-TR) published by the American Psychiatric Association in 2000, because both reports use it:
Axis I              Clinical Disorders
Other Conditions That May be a Focus of Clinical Attention
Axis II            Personality Disorders
Mental Retardation
Axis III            General Medical Conditions
Axis IV            Psychosocial and Environmental Problems
Axis V             Global Assessment of Functioning
The use of the multiaxial system facilitates comprehensive and systematic evaluation with attention to the various mental disorders and general medical conditions, psychosocial and environmental problems, and level of functioning that might be overlooked if the focus were on assessing a single presenting problem.[3]
[3] At p 27.
On 16 September 2011, Dr Westmore, forensic psychiatrist, provided a report following a consultation with Ms Syler in relation to a court proceeding arising from an incident in March 2011 when Ms Syler had consumed alcohol. Under the heading “Psychiatric Diagnostic Issues”, he wrote:
AXIS 1 - Alcohol abuse (currently controlled)
- Cannabis abuse (currently in remission)
- Depressive Disorder – my provisional diagnosis is that she suffers from an Adjustment Disorder with depressed, labile and irritable and anxious mood. The differential diagnosis would include a Major Depressive Disorder.
- ? Eating disorder – to be further investigated.
AXIS III have deferred an opinion about her personality having examined her on only one occasion.
AXIS IIIShe needs a range of investigations in relation to her low weight.
AXIS IVShe faces multiple stressors at this time.
AXIS VI believe she is functioning well below her potential due to her multiple social, psychological and psychiatric problems.
What is a provisional diagnosis?
The specifier “provisional” can be used when there is a strong presumption that the full criteria will ultimately be met for a disorder, but not enough information is available to make a firm diagnosis… Another use of the term provisional is for those situations in which differential diagnosis depends exclusively on the duration of illness.[4]
[4] DSM-IV-TR at p 3.
“Differential diagnosis” in medicine is:
The process of differentiating between two or more conditions which share similar signs or symptoms.[5]
[5] >
Dr Westmore noted that he explained to Ms Syler that the consultation was not for treatment purposes. However, he wrote that if the court considered it appropriate to deal with Ms Syler under section 32 of the Mental Health (Forensic Provisions) Act, his recommended treatment plan would be:
1.    That she continue to attend the psychologist, Ms Zhang.
2.    That she return to her general practitioner and discuss the possible role that antidepressants might have in her short to medium term management.
3.    That she enter into complete sobriety from alcohol.
4.    The counsellor and the general practitioner might explore the possibility of family therapy…
5.    That the general practitioner investigate her low weight.
Ms Syler claimed that she had continued to follow Dr Westmore’s treatment plan.
Dr Miao, consultant psychiatrist, provided a report dated 25 February 2017. Her diagnosis was:
·Axis I
oSubstance misuse disorder: alcohol, cannabis and benzodiazepine
oAdjustment disorder: with depressed, irritable and anxious mood. Mood needs to be reassessed and major depressive disorder to be ruled out when patient is abstinent from substance.
oAnorexia Nervosa to be ruled out by more observations and investigations.
·Axis II: defer
·Axis III: uncontrolled back pain due to recurrent left side Sciatica
·Axis IV: multiple psychosocial stressors
·Axis V: poor functioning due to above physical, psychosocial and psychiatric problems.
Dr Miao set out a plan and recommendations which included investigations for anorexia nervosa, pain clinic for review of back pain, and various measures in relation to substance dependence. Dr Miao’s opinion was that there was no clear indication of psychotropic medications “at present”, psychotherapy should be “mainstay of treatment” and that Ms Syler should continue seeing her psychologist. Dr Miao’s final suggestion was that Ms Syler “consult Dual diagnosis psychiatrist for continuing care”.
“Dual diagnosis” in psychiatry is “a term used to describe when a person is experiencing both mental health problems and substance misuse”.[6]
[6] >
Ms Syler claimed that Dr Miao seemed to have confused her with another patient, had made many mistakes, and that she had tried unsuccessfully to contact Dr Miao to have the report amended. However, Ms Syler relied on the diagnosis of adjustment disorder with the possibility of major depressive disorder, being the same as that made by Dr Westmore.
The Tribunal finds that there was a diagnosed mental health condition during the qualification period. The consistency of the reports of Dr Westmore in 2011 and Dr Miao in 2017 is striking. Both doctors diagnosed adjustment disorder and both considered that major depressive disorder needed to be considered, when Ms Syler was “abstinent from substance” in the case of Dr Miao. The Tribunal finds that both psychiatrists diagnosed a mental health condition, but were not certain at the time of the precise classification, that is, whether the condition was an adjustment disorder under DSM-IV-TR or a mood disorder, relevantly, major depressive disorder. Dr Miao stated clearly that Ms Syler’s substance use was the reason for the uncertainly.
Further, Ms Syler has regularly attended psychological counselling before and after Dr Westmore recommended it and that is the treatment Dr Miao recommended.
Ms Zhang’s evidence is that Ms Syler has continued to suffer a mental health condition throughout the six years she has treated her, including the qualification period, and was motivated to improve her condition but external circumstances had prevented her from making significant progress, contrary to Dr Westmore’s optimistic prognosis that:
from a forensic and a psychiatric perspective will improve considerably if she can continue to receive medium to long term support from mental health professionals within the community and if she can enter into and maintain sobriety from alcohol and illicit substances.
Was Ms Syler’s adjustment disorder fully treated and stabilised during the qualification period?
The Secretary contended that Ms Syler’s adjustment disorder had not been fully treated and stabilised during the qualification period because Ms Syler had not tried antidepressants or entered into complete sobriety from alcohol and illicit substances as recommended by Dr Westmore. Dr Westmore recorded that she had taken antidepressants when she was a child and Dr Miao recorded that she had only taken an antidepressant, Zoloft, when she aged of 15-16 years.[7]
[7] Re Zoloft: >
Ms Syler told the Tribunal the same thing but also said that she reacted badly to that medication and was prescribed Valium to counter the side effects.[8]
[8] Re Valium / Diazepam: >
In relation to the question of substance use, Ms Syler provided blood test results dated 29 March 2017 which she claimed showed that she was not using substances. That is more than a year after the end of the qualification period. There was no medical report before the Tribunal explaining what those results meant. The Tribunal is not qualified to interpret those results. The blood test results do not assist the Tribunal.
The Secretary also argued that Ms Syler had not followed Dr Miao’s recommendations to undertake alcohol and drug counselling for substance abuse disorder and consult a dual diagnosis psychiatrist for continuing care of both conditions, that is, substance abuse and adjustment disorder.
The Tribunal is concerned with whether Ms Syler’s diagnosed mental health condition, adjustment disorder, was fully treated and stabilised during the qualification period. That is a different condition from a condition of substance abuse, of alcohol, cannabis, or benzodiazepam. Because she also diagnosed substance abuse, Dr Miao was unable to determine whether the other mental health condition she suffered was adjustment disorder or major depressive disorder.
The evidence is not clear as to the status of Mr Syler’s mental health condition relating to substance abuse during the qualification period. The recommendations of Dr Miao made in February 2017 relate to Ms Syler’s condition then, and that doctor’s assessment that her substance abuse was neither in remission nor under control. In her 25 February 2017 report, Dr Miao reported that Ms Syler told her she was “feeling anxious sometimes due to worry about ‘where my life is heading to’. She says red wine and diazepam help.’
Ms Syler told the Tribunal during the hearing that she cleaned her apartment sporadically and had “a few drinks of alcohol to do it”.
Ms Syler told the Tribunal that she had followed Dr Westmore’s recommendations. Clearly, she has not followed his recommendation about sobriety, but that relates to her substance abuse condition. Dr Westmore did not record that Ms Syler had reacted badly to antidepressants. In that context, it is not unreasonable for Ms Syler not to pursue his recommendation to discuss taking antidepressants with her general practitioner given her past reaction. It also notes that Dr Miao’s opinion was that there was no clear indication of psychotropic medications “at present”.
Ms Syler regularly attended psychological counselling including during the qualification period. The Tribunal finds that Ms Syler’s mental health condition, adjustment disorder, was fully treated and stabilised during the qualification period. It is a condition that varies according to external circumstances and is exacerbated by her back pain.
Ms Syler also suffered a mental health condition relating to substance abuse, variously described by Dr Westmore and Dr Miao. Ms Zhang does not refer to substance abuse in any of her reports. That condition had been diagnosed during the qualification period but had not been fully treated and stabilised and no rating for impairment can be given for that condition.
What is the appropriate rating for adjustment disorder?
Ms Syler claimed that both the Royal North Shore Hospital multidisciplinary team (the pain clinic) and Ms Zhang recommended a rating of 20 under Table 5 – Mental Health.
The multidisciplinary team at the pain clinic included a senior anaesthetist/pain specialist Dr Wrigley, a clinical psychologist and physiotherapist. She was not assessed by that team until 10 February 2017, a year after the end of the qualification period. Dr Wrigley’s report dated 21 August 2017 states that:
She presents with longstanding complex chronic pain, mental health and social issues.
She has been reviewed by multiple health practitioners and has reached a plateau in her functional capacity. Her situation is unlikely to change and given this it would be reasonable to consider the option of a disability support pension. This opinion has been developed over the year based on individal (sic) review, in consultation with our specialist pain team … and her primary care physician.
The Tribunal accepts that is an opinion of those experts at that time. However, the Tribunal has to make findings about Ms Syler’s condition during the qualification period. It considers that the contemporaneous reports made by Ms Syler and about her, are the best evidence of the impact of adjustment disorder at the relevant time.
In her DSP application, Ms Syler provided the following responses to questions:
·The treatment she was receiving for her conditions was hydrotherapy at Mona Vale Hospital and seeing a psychologist.
·The treatment affects her ability to work or study because it will limit her ability to make a living, sit or stand for long periods, bend, twist and carry.
·She is not expecting to have an operation in the future because of poor success rate.
·She last worked as a training co-ordinator, on 17 October 2014.
·She stopped/completed studying on 28 November 2015.
·She was not prevented from using public transport
·She denied that her disabilities made it difficult for her to care for herself.
Ms Syler wrote a letter which accompanied her application. She only talked about her physical condition.
The JCA submitted on 27 November 2015 had been carried out “face to face”. The assessor was a rehabilitation counsellor. A registered psychologist was a contributing assessor. The assessor summarised the symptoms set out in Ms Zhang’s 3 November 2015 report. There was no record of any conversation with Ms Syler about her mental health.
A government contracted general practitioner assessed Ms Syler in person on 5 January 2016 and submitted the report on 1 March 2016. The doctor recorded that Ms Syler stated that her mood had improved with improving back pain after undergoing hydrotherapy. He also listed the symptoms Ms Zhang listed in her November 2015 report.

Ms Syler wrote a statement criticising that doctor. The letter referred only to her physical condition.
An Employment Services Assessment Report was prepared by a registered psychologist on the basis of a file assessment and submitted on 24 March 2016.
When Ms Syler spoke to the ARO on 4 May 2016, she became “highly agitated and was very upset” when advised that her back condition was not fully treated and stabilised.
It is clear on the evidence, that the onset of lower back pain in October 2014 significantly altered Ms Syler’s life. She had been working and studying until that time. Her concern when she applied for her DSP was the impact of that condition on her functioning. The Tribunal accepts that that condition exacerbates her adjustment disorder condition. However, the evidence does not satisfy the Tribunal that during the qualification period, the functional impact of the adjustment disorder can be rated according to Table 5. To rate 5 points, the person has to have mild difficulties with most of the following:
(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.
The Tribunal accepts that Ms Syler had some difficulties in some of those areas caused by her back pain. The symptoms set out in Ms Zhang’s report were those Ms Syler presented with in 2011. The report does not set out the functional impact of the condition as of November 2015. Ms Syler had been able to work and study until she suffered the back injury. Her complaints during the qualification period were about her physical condition.
The Tribunal finds that Ms Syler’s adjustment disorder rated 0 points under Table 5 during the qualification period.
Lumbar spinal pain
There is no dispute that Ms Syler’s lumbar spinal pain causing some left sciatica was fully diagnosed during the qualification period. The report of Dr Carr dated 7 September 2015 provides a diagnosis after he had “completed my investigations”. The issue is whether it had been fully treated and stabilised during the qualification period.
Dr Carr wrote in his 7 September 2015 report:
For the leg pain I would suggest a trial of a neuroforaminal or lateral recess epidural cortisone injection which can be done hopefully through the radiologists
…
I do not think any of this treatment is going to help her central backache unfortunately.
…
She is going to need hydrotherapy and a physiotherapy program … There is no pain tablet that is going to make any great difference to this and she is aware that she has a complicated long term problem with her low back that is going to limit her ability to make a living, sit for long periods, stand for long periods, bend, twist and carry.
…
I have told Marianne that surgery would involve fusion of the L5/S1 segment and has a poor success rate.
Ms Syler said the following in the statement accompanying her DSP application:
·The epidural did not work.
·She had been told by the physical therapist at Mona Vale Hospital that her back will not get better but a pain management plan was needed.
·She needed her body rehabilitated so that she could wash her dishes and clothes, clean the house and do grocery shopping “without sending my back into spasms”. She was struggling with basic chores. She was unable to cook due to back spasms.
The JCA submitted on 27 November 2015 found the condition fully treated and stabilised and rated the condition at 20 points. It listed the symptoms of this condition as chronic pain, limited sitting, standing, bending, twisting or carrying and that Ms Syler was unable to perform light housework, cook or perform grocery shopping.
The general practitioner who assessed Ms Syler on 5 January 2016 found that the condition was not fully treated or stabilised because she had reported improvement in her pain flexibility, mood and endurance following hydrotherapy and she was keen to undertake further hydrotherapy and physiotherapy. He reported intermittent left sciatica, occasional pain radiating to lower thoracic area, complaints of spasms to the area, that she was able to undertake activities of daily living, “though with some effort”, and struggled to cut toenails, lace up shoes, and vacuum. He also reported that sustained posture can aggravate symptoms, that Ms Syler managed to go up three flights of stairs and was able to drive up to 30 minutes and take public transport.
On 4 May 2016, Ms Syler told the ARO that she was continuing to do hydrotherapy and although improved, she was still in pain, and was on a waiting list for a pain management program.
Dr Reid expressed the opinion in her 12 August 2016 report, that Ms Syler’s back conditions has probably stabilised. She rated the impairment under Table 1 as 20 points.
Ms Syler told the Tribunal that she had started hydrotherapy at Mona Vale Hospital before she applied for DSP and was still doing it. She denied that her pain had changed significantly as a result. She said that it had changed slightly. She agreed that she had been first assessed by the pain clinic in February 2017. She said that they have helped her to figure out and avoid triggers, to pace her activities and to change her mindset. She was continuing to attend.
The Tribunal finds that Ms Syler’s lumbar spinal pain condition was not fully treated and stabilised during the qualification period because it finds on her evidence that her functioning has improved as a consequence of her treatment at the pain clinic. Undoubtedly, the condition had been fully treated and stabilised at the date of Dr Wrigley’s report dated 21 August 2017.
Other conditions
Ms Syler has provided evidence about a gynaecological condition and a neck condition in support of her claim for DSP. She did not mention either condition in her claim for DSP.
The first reference in the medical evidence to a gynaecological condition is in a referral for review to a gynaecological clinic from Dr Reid, GP, dated 2 July 2016, which is five months after the end of the qualification period. The Tribunal does not accept that this condition had been diagnosed during the qualification period and therefore was not permanent as required by the Act.
In Dr Carr’s opinion set out in his report of 6 September 2017, Ms Syler’s intermittent left cervicobrachial pain and pins and needles in her arms symptoms are a consequence of her lumbar problem for the reasons he sets out in that report, and is not a different condition.
DECISION
For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............[sgd].........................................................
Associate
Dated: 11 September 2018

Date of hearing: 3 April 2018

Applicant: In person

Solicitors for the Respondent: Department of Human Services

[2018] AATA 3467

11 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Date of hearing:	3 April 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services