Canada Pension Plan (CPP) disability

Reasons and decision

Persons in attendance

M. P.: Appellant

Lucille Brennan: Appellant’s representative

Introduction

[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on March 21, 2013. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal) on February 17, 2014.

[2] The hearing of this appeal was by Teleconference for the following reasons:

1. The Appellant will be the only party attending the hearing.
2. There are gaps in the information in the file and/or a need for clarification.
3. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

The law

[3] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must:

1. a) be under 65 years of age;
2. b) not be in receipt of the CPP retirement pension;
3. c) be disabled; and
4. d) have made valid contributions to the CPP for not less than the minimum qualifying period (MQP).

[4] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP.

[5] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or she is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.

Issue

[6] The Tribunal finds that having regard to the Appellant’s Record of Earning and the applicable Child Rearing Provisions the Appellant’s MQP is December 31, 2005.

[7] The Appellant also has a possible prorated MQP of February 28, 2013 if she became disabled in 2013 prior to February 28, 2013.

[8] At the outset of the hearing, Ms. Brennan advised that the Appellant was not relying on the December 31, 2005 MQP and that she would only be relying on the possible February 28, 2013 prorated MQP.

[9] In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability commencing in 2013 and on or before February 28, 2013.

Background

[10] The Appellant was 45 years old on the February 28, 2013 possible pro-rated MQP date; she is now 48 years old. She was born in Newfoundland and completed grade 6 of special education. She stated that she was placed in the special education because she had difficulty learning and absorbing information. She moved to X, Ontario in the early 1990’s and moved back to Newfoundland in February 2015. Her employment history includes working in construction (picking up garbage and wastage for her fiancé’s company for two years), and working as a cashier for Tim Horton’s. She hasn’t worked since January 2013.

Application materials

[11] In her CPP disability questionnaire, signed on March 6, 2013, the Appellant indicated that she has a grade 12 education. At the hearing, the Appellant testified that she only had grade 6 and that she had indicated grade 12 on her resume and application to make herself look good. She noted that she worked as a cashier for Tim Horton’s from January 31, 2012 until January 5, 2013; she indicated that she stopped working because her doctor put her on sick leave. She claimed to be disabled as of January 5, 2013 and noted that the illnesses and impairments that prevented her from working include exhaustion, panic attacks, inability to be around other people, and being mentally unstable. She noted her other health related conditions to include sleeping disorder, not eating properly, and being fearful. She stated that she is too fearful to go out.

[12] She described her difficulties/functional limitations as follows: not able to sit/stand for long (usually up and down); doesn’t walk because her legs, knees, and lower back hurt; can only lift less than 5 lbs.; not able to reach far and feels weak when bends; can manage household maintenance; difficulties with memory and concentration; only able to sleep 3-4 hours a night; sometimes has hard time breathing and catching her breath.

[13] A report dated March 8, 2013 from Dr. Lefcoe, the Appellant’s psychiatrist, accompanied the CPP application. Dr. Lefcoe indicated that he had started treating the Appellant for her main condition in November 2011. The report diagnoses post-traumatic stress disorder (PTSD) and major depressive disorder. The prognosis was guarded.

Oral evidence

[14] The Appellant reviewed her education and employment history. She stated that she was a stay at home mother and wasn’t allowed to work while she was married. The only employment that she could recall was her construction work for her fiancé’s company and working as a cashier for Tim Horton’s.

[15] She stated that when she worked for Tim Horton’s she wasn’t able to handle the job. She found it too stressful and she couldn’t understand what she had to do. When asked why she stopped working for Tim Horton’s in January 2013 she stated, “I was being bullied...I couldn’t do the job correctly...I felt down all the time...I was depressed...I snapped at work one day and my boss told me to go home and see a doctor...I never returned after that.”

[16] She had started to see Dr. Lefcoe while she was working at Tim Horton’s because she couldn’t cope with things...she was wondering what was wrong with her...she couldn’t focus and she couldn’t understand what was happening. She stated, “I felt like a failure for a long time.” After she stopped working she received sick Employment Insurance benefits for 15 weeks, and then went on ODSP. She moved back to Newfoundland in February 2015, and is now receiving welfare. She hasn’t worked since January 2013.

[17] The Appellant stated that her symptoms haven’t improved since she moved back to Newfoundland. She is afraid to go out because she gets panic attacks. She sees Dr. Maritz, a psychiatrist, every five weeks. He prescribes the following medications:

• Venlafaxine: 150 mg and 75 mg at bed-time.
• trazadone: 100 mg at bed-time.
• clonazepam: .5 mg at bed-time, and as needed.
• Risperidone: 1 mg. at bed-time for night-mares
• Hydroxyzine: 10 mg as needed

[18] There are no mental health programs available in Gander, and Dr. Maritz has told her that he is going to arrange counselling. When she was in X she completed a Track to Wellness Program which was a group mental health program teaching mindfulness and coping skills. The program lasted for two to three months, and she went once a week. The Appellant stated that she didn’t find the program helpful because she couldn’t understand what was going on. In X she couldn’t go to other programs because of her marijuana use. She stopped using marijuana about four months ago because she couldn’t afford it. She stated that the marijuana used to help her sleep and get through the day. Her family doctor in Newfoundland has prescribed medical marijuana but she can’t afford it. About 4-5 months ago she went to the hospital emergency department in Gander because she was out of control and crying. She was hospitalized twice in London; on March 24, 2013 (see GD5-52) and in October 2014 (see GD6-3).

[19] When she stopped working for Tim Horton’s in January 2013 she was living in a provincially subsidized apartment. She wasn’t cooking...she was losing weight and had no appetite...she wasn’t able to sleep...she had nightmares...she was afraid to out because she believed her ex was following her.... and she had panic attacks when she went out. She tried to go to church on two occasions, but she had panic attacks each time. She was too anxious to go grocery shopping because of the crowds, so she went to the food bank. She wasn’t dressing every day...she had no energy...she didn’t shower or bath regularly (only once a month).... and she didn’t trust people so she didn’t have friends. The Appellant stated that she has continued to have the same symptoms since moving back to Newfoundland. She feels the same emotionally as she did in X. She stated, “I get up...go through the motions...I have no energy.”

[20] She isn’t able to work because she gets panic attacks and “can’t stand” being around people. When she goes out she feels that she is being watched. She just wants to stay home. She only goes out to visit her parents (they live five minutes away) and for necessary matters such as medical appointments and banking. She stated, “I only go out when I have to.” She only does laundry every two or three months; she “has to be pushed” to do anything.

Medical evidence

[21] The Tribunal has carefully reviewed all of the medical evidence in the hearing file. Set out below are those excerpts the Tribunal considers most pertinent.

[22] A discharge summary from the London Health Sciences Centre dated April 4, 2013 indicted that the Appellant had presented at the emergency room on March 24 with suicidal ideation and a plan to overdose on pills. The Appellant stated that she has had “on and off” suicidal thoughts for 22 years; that she had been sexually assaulted in February by an elderly man who was a housemate; that she had been since living at a women’s community house; and that the sexual assault was very traumatizing to her and started the current decline in her mood and functional status. The Appellant complained of significant PTSD symptoms.

[23] The discharge summary refers to another sexual abuse two years ago. as well as physically and emotionally abusive previous relationships and her having been forced to have an abortion. The Appellant was using up to 4-5 marijuana joints a day and had no interest in changing this since she felt that this was the only thing that helps her anxiety symptoms. The discharge diagnosis was complex post traumatic stress disorder, major depressive disorder, and query social anxiety disorder.

[24]  A London Health Sciences Centre progress note dated June 23, 2014 indicated that the Appellant had completed a group trauma program. The note also indicates that she was not well mentally; that there was little improvement; and that she had multiple stressors

[25] A London Health Sciences Centre discharge summary dated October 11, 2014 indicates that a situational crisis (conflict with roommate) precipitated the admission. The discharge diagnosis was PTSD and cannabis abuse.

[26] A consultation report dated October 20, 2014 prepared by Dr. Tidd, psychiatrist, at the London Health Sciences Centre indicates that the Appellant was admitted to psychiatry for worsening suicidal ideation and depression. Due to her recent suicidal ideation and current irritability, she was placed on a form 3 because it was felt that she could be at further risk if discharged from the hospital at that time.

Submissions

[27] Ms. Brennan submitted that the Appellant  qualifies for a disability pension because:

1. In her notice of appeal the Appellant indicated that she was seeing a psychiatrist monthly and attending PTSD groups, that she was afraid all the time, that she had nightmares, and that she can’t be around people;
2. Despite continued psychiatric treatment in London and Newfoundland as well as increased medications, she has not improved;
3. She was hospitalized twice in London and attended the hospital emergency department in Newfoundland;
4. Dr. Lefcoe’s March 2013 medical report supporting the CPP application was based on 16 months of treatment;
5. Ms. Brennan referred to various progress notes which confirm the Appellant’s symptoms;
6. Ms. Brennan concluded that the evidence satisfies the severe and prolonged criteria based on the February 28, 2013 pro-rated MQP.

[28] The Respondent submitted that the Appellant does not qualify for a disability pension because:

1. There is no issue to show the Appellant was disabled as of the December 31, 2005 MQP and she had employment earnings in 2009, 2010, and 2011;
2. Although she was having mental health issues around the possible pro-rated MQ date, the evidence shows she improved with treatment (medication and counselling);
3. The purpose of CPP disability is to provide a pension where a disability forces a claimant to leave the workforce on a long-term basis and not to tide a claimant over a temporary period where a medical condition prevents her from working.

Analysis

[29] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability commencing in 2013 on or before February 28, 2013.

Severe

[30] The statutory requirements to support a disability claim are defined in subsection 42(2) of the CPP Act which essentially says that, to be disabled, one must have a disability that is "severe" and "prolonged". A disability is "severe" if a person is incapable regularly of pursuing any substantially gainful occupation. A person must not only be unable to do their usual job, but also unable to do any job they might reasonably be expected to do. A disability is "prolonged" if it is likely to be long continued and of indefinite duration or likely to result in death.

Guiding Principles

[31] The following cases provided guidance and assistance to the Tribunal in determining the issues on this appeal.

[32] The burden of proof lies upon the Appellant to establish on the balance of probabilities that commencing in 2013 and on or before February 28, 2013, she was disabled within the definition. The severity requirement must be assessed in a "real world" context: Villani v Canada (Attorney General), 2001 FCA 248. The Tribunal must consider factors such as a person's age, education level, language proficiency, and past work and life experiences when determining the "employability" of the person with regards to his or her disability.

[33] Remedial legislation like the Canada Pension Plan should be given a liberal construction consistent with its remedial objectives and each word in the subparagraph 42(2)(a)(i) of the CPP must be given meaning and effect, and when read in that way, the subparagraph indicates that Parliament viewed as severe any disability which renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation: Villani v Canada (Attorney General), 2001 FCA 248.

[34] The Appellant must not only show a serious health problem, but where there is evidence of work capacity, the Appellant must establish that he has made efforts at obtaining and maintaining employment that were unsuccessful by reason of her health: Inclima v Canada (Attorney General), 2003 FCA 117. However, if there is no work capacity, there is no obligation to show efforts to pursue employment. Incapacity can be demonstrated in a number of different ways, for example, it can be established through evidence that the Appellant would be incapable of any employment-related activity: C.D v MHRD (September 18, 2012) CP27862 (PAB).

Application of Guiding Principles

[35] In light of the strong supporting psychiatric evidence, the Tribunal accepts the Appellant’s evidence concerning her long-standing mental health issues (including complex PTSD, major depressive disorder, and social anxiety) and about how they have affected her life and capacity to work. Although these issues were present prior to 2013, the Appellant was able to continue working. They did not progress to severe until January 2013 when the Appellant was no longer able to continue working at Tim Horton’s.

[36] The Appellant is under continuing psychiatric treatment, was hospitalized on two occasions in London, attended the emergency department in Newfoundland, participated in a group mental health program, and is prescribed significant psychotropic medications. She moved back to Newfoundland hoping that this would assist in her recovery. Unfortunately, there has been no improvement and her disabling symptoms continue. In light of her multiple disabling symptoms which include panic attacks, inability to be around other people, social isolation, sleep disorder, nightmares, and suicidal ideation, it is difficult to envision any type of gainful employment that the Appellant could pursue. The Tribunal also took into consideration the Appellant’s limited education as well as her narrow work history. The Tribunal is satisfied that the Appellant lacks the regular capacity to pursue any employment related activity (see C.D v MHRD, supra).

[37] The Tribunal finds that the Appellant has established, on the balance of probabilities, a severe disability commencing in 2013 and prior to the pro-rated February 28, 2103 MQP.

Prolonged

[38] Having found that the Appellant’s disability is severe the Tribunal must also determine the prolonged criteria.

[39] The Appellant disabling mental health conditions are long standing and despite ongoing psychiatric treatment and significant medications there has been no improvement.

[40] The Appellant’s disability is long continued and there is no reasonable prospect of improvement in the foreseeable future.

Conclusion

[41] The Tribunal finds that the Appellant had a severe and prolonged disability in January 2013, when she stopped working for Tim Horton’s. According to section 69 of the CPP, payments start four months after the date of disability. Payments start as of May 2013.

[42] The appeal is allowed.