Canada Pension Plan (CPP) disability

Reasons and decision

Decision

Leave to appeal is refused.

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division (GD) of the Social Security Tribunal (SST) dated March 4, 2016. The GD had earlier conducted a hearing by teleconference and determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan (CPP), as it found that her disability was not “severe” prior to the minimum qualifying period (MQP) of December 31, 2013.

[2] On June 6, 2016, within the specified time limitation, the Applicant’s representative filed an application requesting leave to appeal, advancing numerous grounds of appeal and relying on various legal authorities. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.

The law

[3] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the Appeal Division (AD) may only be brought if leave to appeal is granted, and the AD must either grant or refuse leave to appeal.

[4] Subsection 58(1) of the DESDA sets out that the only grounds of appeal are the following:

1. (a) The GD failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The GD erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The GD based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[5] Subsection 58(2) of the DESDA provides that “leave to appeal is refused if the AD is satisfied that the appeal has no reasonable chance of success.”

[6] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada.^{Footnote 1} The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada.^{Footnote 2}

[7] I need to be satisfied that the reasons for appeal fall within any of the grounds of appeal and that the appeal has a reasonable chance of success, before leave can be granted.

Issue

[8] Does the appeal have a reasonable chance of success?

Submissions

[9] In a letter appended to the application requesting leave to appeal, the Applicant’s representative made the following allegations:

1. (a) The GD’s analysis, specifically paragraphs 55 to 57 of the decision, ignored medical information before it dated October 2013 to April 2015—a period coincident with, and relevant to, the MQP. In particular, the Applicant alleges that the GD disregarded relevant medical documents contained in the submission package labelled GD9, including:
   • Clinical note of Dr. Bednarska dated November 19, 2013 (GD9-24-25);
   • Clinical note of Dr. Bednarska dated December 5, 2013 (GD9-30);
   • X-ray report dated December 6, 2013 (GD9-37);
   • Clinical notes of Dr. Bednarska dated December 19, 2013 and January16, 2014 (GD9-43-44);
   • Consultation request from Dr. Bednarska dated January 20, 2014 (GD9- 44);
   • Report from Waterloo Sports Medicine Centre dated December 16 2014 (GD9-106).
2. In ignoring this material, the GD did not adequately consider the Applicant’s claim of limitations to her lower back. After her bypass surgery in 2011, she developed overall muscular deconditioning, chronic pain and psychological distress. Her employment prospects were significantly diminished based upon a holistic approach of all medical conditions. She has exhausted all avenues of treatment without significant positive effect and there has continued to be a significant deterioration of her condition.
3. (b) The GD erred in law by failing to apply Barata v. MHR^{Footnote 3} 3 in focusing on the Applicant’s medical conditions separately and not considering their collective effect on her ability to work.
4. (c) The GD erred in law by failing to apply MHRD v. Bennett^{Footnote 4} in giving inadequate consideration to the “regular” aspect of the CPP requirement. A claimant should not be expected to find a philanthropic, supportive, flexible employer who is prepared to accommodate her disabilities.

Analysis

Failure to Consider Medical Evidence from October 2013 to April 2015

[10] The Applicant alleges that the GD ignored medical evidence detailing her condition from October 2013 to April 2015—specifically, selected documents contained in the package labelled GD9 for SST cataloguing purposes.

[11] Having reviewed the GD’s decision, I can confirm that it mentions no evidence dating from the 18-month period referenced by the Applicant. However, I disagree that this constitutes a lapse in fairness or error in law or fact. In its decision, the GD summarized numerous medical reports, many of which it expressly relied on in its analysis of the Applicant’s claims. My survey of the available evidence suggests that the gap was most likely attributable to a simple dearth of significant medical reports from October 2013 to April 2015, rather than negligence on the part of the GD.

[12] It is true that the GD made limited reference in its decision to the material in GD9, but this should be placed in context. The entirety of this 143-page package consists of the complete clinical records of Dr. Bednarska, the Applicant’s family doctor, from October 2013 to April 2015. In my view, the specific office notes highlighted by the Applicant, while slightly more proximate to the MQP, did not say anything that differed in substance from prior reports that were discussed in the decision, including Dr. Bednarska’s entries of October 10, 2013 and October 24, 2013. Moreover, the Appellant’s complaint of back pain, which is the predominant subject of the documents listed in the leave to appeal application, was noted in paragraph 26, and her complaints of generalized chronic pain were acknowledged throughout the decision. It should also be noted that GD9 was just one of seven packages of medical documents the Applicant submitted over a nearly three-year period, comprising nearly 1,100 pages in all. Given this volume of material, it would be patently unreasonable to expect the GD to explicitly address every document and every aspect of the evidence before it. In this case, the GD appears to have made the defensible choice of selecting for inclusion in its decision those reports that played a role in its reasoning.

[13] It is an established principle of administrative law that a tribunal need not refer to each and every item of evidence before it but is deemed to have considered all of it.^{Footnote 5} It was open to the GD as the trier of fact to sift through the relevant facts, assess the quality of the evidence and determine what, if any, it chose to accept or disregard, before deciding on its weight and ultimately coming to a decision based on its interpretation and analysis of the evidence before it. Hence, I can find no arguable case that the GD erred in its consideration of the post-MQP evidence, arising out of the fact that it placed less weight on some of it than the Applicant submits was appropriate.

[14] I see no reasonable chance of success on this ground.

Failure to Consider Collective Effect of Conditions

[15] The Applicant submits that the GD erred in law by failing to take into account the totality of her conditions in determining that her impairments were less than severe. Although she cites Barata, a decision of the Pension Appeals Board (PAB) that is not binding on the AD, the Federal Court of Appeal has held in cases such as Bungay v. Canada (A.G.)^{Footnote 6} that all of a claimant’s conditions must be considered, along with their collective impact on her functionality.

[16] The GD is specifically alleged not to have considered all of the Applicant’s medical conditions, which included coronary artery disease, which required double bypass surgery, as well as sleep apnea, shortness of breath, stomach ulcers, pain in her legs and arms and depression. Having reviewed the GD’s decision, I see no arguable case on this ground. The GD summarized much of the medical evidence, which documented, to varying degrees, the Applicant’s medical conditions and associated symptoms. As discussed earlier, it is trite law that a trier of fact need not refer to each and every item of evidence before it when setting out reasons for its decision, and it was within the GD’s authority to make its own determination about which of the Applicant’s claimed impairments were significant and which were not. The GD’s analysis contained detailed discussions of the Applicant’s various symptoms, diagnoses and treatments, and the fact that it did not explicitly mention her back pain does not necessarily mean that it was excluded from consideration.

Failure to Consider Regularity

[17] The Applicant submits that the GD erred in law by disregarding the “regular” aspect of the disability severity test. Paragraph 42(2)(a) of the CPP demands consideration of whether an applicant was “incapable regularly of pursuing any substantially gainful occupation,” a test that I note was correctly stated by the GD several times throughout its decision.

[18] Of course, merely stating a test does not necessarily mean that it was applied in practice. Bennett is another non-binding decision of the PAB, but there is a line of authority^{Footnote 7} that refines the concept of regularity, linking it to predictability—the capacity of a claimant to come to a place of employment whenever and as often as is necessary. The Applicant has not pointed to a specific instance in which the GD misapplied the test. It is important to recall that there is no onus on the GD to show that the Applicant is capable of regular employment; rather, the burden of proof lies on the Applicant to show that she is incapable “regularly” of pursuing a substantially gainful occupation. In this case, the GD, having weighed the available evidence and noted that the Applicant had not attempted lighter work, was not persuaded that she suffered from a disability that impeded her from reliably working as of December 31, 2013.

[19] I see no reasonable chance of success on this ground.

Conclusion

[20] As the Applicant has not presented an arguable case on any ground, the application for leave to appeal is refused.