Mosavi and Secretary, Department of Social Services (Social services second review) [2015] AATA 845 (2 November 2015)

Division	GENERAL DIVISION	
File Number	2015/0085	
Re	Sam Mosavi	
	APPLICANT	
And	Secretary, Department of Social Services	
	RESPONDENT	
Decision

Tribunal	Dr T Nicoletti, Senior Member

Date	2 November 2015	
Place	Sydney	
The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Dr T Nicoletti, Senior Member

Catchwords
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions considered permanent – whether conditions fully diagnosed, treated and stabilised – whether rating of 20 points or more can be given under Impairment Tables – decision affirmed

Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 13(1), 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

Dr T Nicoletti, Senior Member

2 November 2015

Facts
1.	On 29 May 2014, Mr Mosavi submitted a claim for disability support pension (DSP).  The claim listed "chronic depression, chronic cervical and lumbar discogenic, low back pain" as the medical conditions he suffered from which were impacting his ability to function. 
2.	In support of his claim, Mr Mosavi submitted a medical report dated 22 May 2014 from a psychiatrist, Dr Ali, which stated that the condition that had the most impact on Mr Mosavi was "Dysthymia (-ch Depression)". Dr Ali also reported the symptoms of Mr Mosavi’s condition as "dep[ressed] mood - sleep diff[iculties]. Tiredness - poor concentration – diff[iculty] in making decisions" and described the condition as "slow onset of depression with multiple essential factors. Had financial problems. Was also distressed not able to see his children". Dr Ali reported the condition as likely to persist for more than 24 months and the impact on Mr Mosavi’s ability to function was likely to remain unchanged.
3.	On 19 June 2014, Mr Mosavi attended a job capacity assessment (JCA), which was conducted by a registered psychologist and a contributing assessor who was a rehabilitation counsellor.
4.	In the JCA report, the assessor found that:
(a)	Mr Mosavi’s mental health condition was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 5 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables); and
(b)	Mr Mosavi’s spinal condition was not fully diagnosed, treated and stabilised and no impairment rating could be assigned.
5.	A total impairment rating of 10 points was therefore assigned in respect of Mr Mosavi’s medical conditions.
6.	The JCA report assessed Mr Mosavi as having a "baseline" work capacity of 15-22 hours per week which, with appropriate treatment, could increase to 23-29 hours in the following two years.
7.	On 20 June 2014, Centrelink rejected Mr Mosavi’s claim for DSP.
8.	On 24 June 2014, Mr Mosavi requested a review of this decision by an Authorised Review Officer (ARO).
9.	On 23 September 2014, the ARO affirmed the decision to reject Mr Mosavi’s claim on the basis that, although Mr Mosavi’s depression attracted an impairment rating of 10 points under Table 5, his spinal condition was not fully diagnosed, treated and stabilised and therefore could not be assigned an impairment rating.
10.	The ARO further determined that Mr Mosavi did not have a continuing inability to work and had not satisfied the requirements of a program of support.
11.	On 3 November 2014, Mr Mosavi applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO decision.
12.	On 9 December 2014, the SSAT affirmed the decision under review on the basis that Mr Mosavi’s:
(c)	mental health condition was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 5; but
(d)	his spinal condition was not fully diagnosed, treated and stabilised and therefore an impairment rating could not be assigned.
13.	On that basis, the SSAT decided that Mr Mosavi’s impairment did not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991 (the Act), in that his impairment did not attract at least 20 points or more under the Impairment Tables.
14.	On 2 January 2015, Mr Mosavi applied to this Tribunal for a review of the SSAT’s decision.
Issues
15.	The issue before this Tribunal is whether Mr Mosavi qualified to receive DSP on 29 May 2014, when the claim was submitted, or during the 13 weeks after that date (the relevant period).  The relevant period is therefore from 29 May 2014 until 28 August 2014.
16.	For the purposes of determining whether Mr Mosavi qualified to receive DSP, I am required to consider, pursuant to section 94(1)(b) of the Act, whether Mr Mosavi’s medical conditions attracted an impairment rating of at least 20 points under the Impairment Tables and, if so, whether Mr Mosavi had a continuing ability to work, as defined in section 94(2) of the Act.
Legislation
17.	The legislation applicable to this matter is contained within:
(e)	the Act;
(f)	the Social Security (Administration) Act 1999 (Administration Act);
(g)	the Impairment Tables; and
(h)	the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (the Determination).
18.	Section 13(1) of the Administration Act provides:
(1) For the purposes of the social security law, if: 
(a)	the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)	the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)	the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)	the person lodges a claim for the social security payment within 14 days after the Department is contacted; 
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted. 
19.	Schedule 2, subclause 4(1) of the Administration Act provides:
If:
(a)	a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)	the person is not, on the day on which the claim is made, qualified for the payment; and
(c)	assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)	the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
20.	Section 94(1) of the Act sets out the criteria for qualification for DSP and provides, relevantly: 
(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;
…
21.	The Impairment Tables contain 'Part 2 - Rules for applying the Impairment Tables' which must be satisfied before an impairment rating can be assigned. 
22.	Paragraph 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent.
23.	Paragraph 6(4) of the Impairment Tables specifically defines the word “permanent” for the purposes of paragraph 6(3) and provides that a condition is permanent if it:
•	has been fully diagnosed by an appropriately qualified medical practitioner;
•	has been fully treated;
•	has been fully stabilised; and
•	is more likely than not, in light of available evidence, to persist for more than 2 years.
24.	Paragraph 6(5) of the Impairment Tables provides that in determining whether a condition is fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b), the following must be considered:
•	Whether there is corroborating evidence of the condition; and
•	What treatment or rehabilitation has occurred in relation to the condition; and
•	Whether treatment is continuing or is planned in the next 2 years.
25.	Paragraph 6(6) of the Impairment Tables provides that a condition is fully stabilised if either:
(a)	the person has undertaken reasonable treatment tor 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)	if the person has not undertaken reasonable treatment tor the condition:
(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.
26.	For the purposes of paragraph 6(6), “reasonable treatment” is defined in paragraph 6(7), as follows:
(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.
Consideration
Did Mr Mosavi have a physical, intellectual or psychiatric impairment?
27.	Mr Mosavi first notified Centrelink and lodged his claim for DSP on 29 May 2014 (the date of claim). As such, if Mr Mosavi qualified for DSP on this date, section 13(1) of the Administration Act deems him to have made a claim on this date.
28.	The medical evidence indicates that during the relevant period, Mr Mosavi suffered from a mental health condition and had a spinal condition.  I am therefore satisfied that during the relevant period, Mr Mosavi had a “physical, intellectual or psychiatric impairment” and, on that basis, section 94(1)(a) of the Act is satisfied.
Did Mr Mosavi’s medical conditions attract an impairment rating under the Impairment Tables?
Mental health condition
29.	In terms of assessing Mr Mosavi’s mental health condition under section 94(1)(b) of the Act, I note that the respondent accepted that Mr Mosavi had a mental health condition during the relevant period, but contended that this condition was not fully diagnosed, treated and stabilised during this period, and therefore could not be assigned an impairment rating. 
30.	The following evidence is relevant in considering this contention:
(i)	the JCA report dated 19 June 2014;
(j)	the SSAT decision dated 9 December 2014;
(k)	Dr Ali’s (the psychiatrist’s)  reports dated 19 September 2013 and 1 May 2015;
(l)	Mr Mosavi’s PBS and MBS records from 1 June 2012 to 27 April 2015;
(m)	Mr Abaie’s (the treating psychologist’s) reports dated 25 February 2015 and 6 May 2015; and
(n)	Dr Al-Taiff's (the treating doctor’s) reports dated 12 February 2014 and 4 April 2015.
31.	I note, at least, that the JCA report dated 19 June 2014 and the SSAT decision dated 9 December 2014 determined that Mr Mosavi’s mental health condition attracted an impairment rating of 10, and the JCA and SSAT must therefore have determined that Mr Mosavi’s mental health condition was permanent, i.e. fully diagnosed, treated and stabilised, and more likely than not, in light of available evidence, to persist for more than 2 years (paragraphs 6(3) and 6(4) of the Impairment Tables).  
32.	However, notwithstanding those determinations, I note that Dr Ali’s report dated 19 September 2013 indicates that Mr Mosavi commenced treatment on antidepressant medication on or around that date, but that the dose of his medication had doubled by 12 February 2014, as stated in Dr Al-Taiff’s report of that date.  This raises questions as to whether Mr Mosavi’s mental health condition was fully diagnosed, treated and stabilised when the claim was lodged and during the relevant period.
33.	Most relevantly, an analysis of Mr Mosavi’s PBS records indicates that during the relevant period, Mr Mosavi only filled his prescription for antidepressant medication once during that period, providing him with only 28 days’ supply of antidepressant medication for a 90-day period. Mr Mosavi also filled a prescription for only one pack of his antidepressant medication on 7 April 2014 to last him until 5 May 2014, but then did not fill his next prescription until 3 July 2014, almost two months later.  When Mr Mosavi was questioned about this during the hearing, he became quite angry and stated that many times he slept for days because of his medical condition and was unable to get out of bed to go and purchase his medication.
34.	However, regardless of the reasons Mr Mosavi provided, the analysis in paragraph 33 above indicates that Mr Mosavi was non-compliant with his medication, only taking it intermittently.  This is confirmed in the JCA report dated 19 June 2014, which states that Mr Mosavi advised the job capacity assessor that he had been taking his medication “intermittently for over a year”.  On this basis, and contrary to the SSAT’s finding, I cannot conclude that Mr Mosavi’s depression was fully diagnosed, treated and stabilised during the relevant period.
35.	A detailed review of other medical evidence supports this view.  Specifically, Mr Abaie’s report dated 6 May 2015 states that Mr Mosavi had seen him for ten sessions since 2011, but his report dated 25 February 2015 indicated that he had only seen Mr Mosavi on four occasions since 2011. As argued by the respondent, between the dates 25 February 2015 and 6 May 2015, Mr Mosavi had, on average, seen Mr Abaie almost weekly and therefore significantly increased his psychological treatment during that period.  Notably, Mr. Abaie stated in his report dated 6 May 2015 that Mr Mosavi is "mentally unstable and requires psychotherapy, antidepressant medication and support" (emphasis added).
36.	Further, it has been somewhat difficult to understand the true nature of Mr Mosavi’s mental health condition, which has been complicated by the contradictory medical evidence.  In his report dated 1 May 2015, Dr Ali stated that Mr Mosavi’s “condition has not changed much and in some way he is worse". This assessment appears to be with reference to Dr Ali’s earlier report dated 19 September 2013 (attached to his report dated 1 May 2015), which states that Mr Mosavi had "no evidence of psychosis, brain damage or any other problem...functioning at an average level of intelligence".  In line with this report, Mr Abaie’s report dated 6 May 2015 stated that Mr Mosavi had "no thought disorder, delusions or hallucination" but then also stated in the same report that Mr Mosavi was "mentally unstable and requires psychotherapy, antidepressant medication and support".  However, Dr Al-Taiff’s report dated 4 April 2015 (one month earlier) stated that Mr Mosavi’s "thoughts and conversation are significantly and frequently disturbed." 
37.	Even if I was to accept the veracity of the medical evidence cited in paragraph 30 above and discussed in paragraphs 31 to 36 above, I can only conclude that it indicates that Mr Mosavi’s mental health condition was not fully diagnosed, treated and stabilised during the relevant period.  I cannot, therefore, assign an impairment rating to Mr Mosavi’s mental health condition.
Spinal Condition
38.	The Treating Doctor’s Report dated 12 February 2014 stated that Mr Mosavi had "chronic severe degenerative discogenic and lumbar pain". The onset of the condition was confirmed by an MRI on 16 October 2013. The JCA report and SSAT noted that Mr Mosavi had received limited treatment for this condition, mainly resorting to intermittent pain medication.  He had not, however, availed himself of other treatment options, such as hydrotherapy, pain management programs, or steroid injections.
39.	The respondent contends that Mr Mosavi’s spinal condition was not fully diagnosed, treated and stabilised during the relevant period.
40.	Mr Mosavi wore a neck brace at the Tribunal hearing but had stated in the SSAT hearing that his "lower back had the worst pain" and his "legs and arms feel numb because of his spine". The SSAT noted that during the SSAT hearing, Mr Mosavi was able to "move quite freely during the hearing and was able to sit for 30 minutes".
41.	During the Tribunal hearing, notwithstanding the neck brace, Mr Mosavi did not show any signs of discomfort and was able to sit during the entire hearing without any evidence of pain or functional impairment.  At one point during the hearing, when Mr Mosavi was questioned about his medical condition, he removed his neck brace in anger and then moved his arms and head from side to side freely whilst he forcefully articulated his position (through his interpreter).
42.	Mr Mosavi claimed that his ability to function was limited by the pain he was experiencing, which suggests that the impairment was not due to any structural problems that were preventing him from moving.  However, I did not observe any evidence during the hearing that Mr Mosavi was experiencing any pain or functional impairment caused by his spinal condition. 
43.	I am not satisfied that Mr Mosavi’s spinal condition was fully diagnosed, treated and stabilised during the relevant period.  Whilst the MRI supported a diagnosis of severe disc degeneration, and therefore Mr Mosavi’s spinal condition may be said to have been fully diagnosed, the alleged functional impairment appears to have at times originated from Mr Mosavi’s lower back and then at other times from his cervical spine.  Noting that Mr Mosavi’s treatment was limited to intermittent pain medication and he claimed that he was in constant pain, I cannot conclude that Mr Mosavi made sufficient effort to obtain reasonable treatment (as defined in paragraph 6(7) of the Impairment Tables) to manage his spinal condition, and therefore I cannot conclude that his spinal condition was fully treated and stabilised during the relevant period.  It follows, therefore, that I cannot assign an impairment rating to Mr Mosavi’s spinal condition.
Total impairment rating
44.	The medical evidence submitted to this Tribunal indicates that Mr Mosavi’s mental health condition and spinal condition were not fully diagnosed, treated and stabilised during the relevant period and therefore an impairment rating for each condition cannot be assigned. Mr Mosavi therefore does not satisfy section 94(1)(b) of the Act.
45.	Given that Mr Mosavi has not satisfied section 94(1)(b) of the Act, he does not qualify for DSP and, therefore, it is not necessary for me to consider whether Mr Mosavi has a continuing inability to work, as required under section 94(1)(c) of the Act.
Decision
46.	The decision under review is affirmed.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Dr T Nicoletti, Senior Member	
..............................[sgd]..........................................
Associate
Dated 2 November 2015

Date of hearing	15 July 2015	
Applicant	In person	
Solicitors for the Respondent	Department of Human Services