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Reasons and decision
Decision
Leave to appeal is refused.
Introduction
[1] The Applicant seeks leave to appeal a decision of the General Division of the Social Security Tribunal of Canada (Tribunal) dated August 6, 2016. The General Division had earlier conducted a hearing by teleconference and determined that the Applicant was ineligible for a disability pension under the Canada Pension Plan (CPP), because her disability was not severe during her minimum qualifying period (MQP), which ended on December 31, 2014.
[2] On October 13, 2016, within the specified time limitation, the Applicant submitted an incomplete application requesting leave to appeal to the Appeal Division. Following a request for further information, the Applicant perfected her appeal on November 13, 2016.
[3] For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.
The law
Canada Pension Plan
[4] 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:
- (a) Be under 65 years of age;
- (b) Nnot be in receipt of the CPP retirement pension;
- (c) Be disabled; and
- (d) Have made valid contributions to the CPP for not less than the MQP.
Department of Employment and Social Development Act
[5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the Appeal Division may be brought only if leave to appeal is granted and the Appeal Division must either grant or refuse leave to appeal.
[6] Subsection 58(2) of the DESDA provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
[7] According to subsection 58(1) of the DESDA, the only grounds of appeal are the following:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) The General Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[8] Some arguable ground upon which the proposed appeal might succeed is needed for leave to appeal 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
[9] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is an initial hurdle for an applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the applicant does not have to prove the case.
Issue
[10] Does the appeal have a reasonable chance of success?
Submissions
[11] In a letter dated October 7, 2016, the Applicant took issue with the statement that Dr. Pieterse’s comments on her physical abilities did not appear to be based on a functional assessment and were likely based on her self-reporting. She asks, “How was I supposed to find out what was going on with me? Like any other patient, there was a variety of tests done that ruled out a lot of possibilities that could have been causing all the pain.” After more than a year, she was diagnosed with fibromyalgia. She was in the fight of her life trying to deal with her pain, which left her very isolated and depressed.
[12] The Applicant also submitted that Dr. Lydell, in his rheumatology report dated February 14, 2011, did not mention anything about fibromyalgia. At that time, she was still working but in a great deal of pain, and he was very friendly. She was glad to take his advice.
However, when she saw him in October 2012, Dr. Lydell was a different person; he was verbally abusive, refused to let her speak and all but accused her of seeking drugs.
[13] The Applicant stated that she had seen Dr. Shapiro only once for a two-hour psychiatric assessment after a difficult and exhausting trip from Grand Prairie to Edmonton. His report said that, even though she was not able to work in housekeeping, she was capable of suitable work. It seems unfair that a single visit should determine what happens for the rest of her life.
[14] The Applicant stated that she had been in a variety of treatment and exercise programs, but that she had seen a very poor response. She has great difficulty looking after herself. She has a grade 10 education, has no training or skills and has never used a computer. She worked as a nanny for six years and never called in sick. She moved to Grand Prairie, where she worked in the housekeeping department of the hospital. She enjoyed her job and was making good money. It broke her heart to give it up, but, because of her health, she could no longer carry out her duties. Right now, she is living in Newfoundland and does not have drug insurance. She is on long-term disability benefits, and half of that small amount goes toward medications. Living with widespread pain is a nightmare affecting her mind, focus, memory and thinking.
[15] In a letter dated March 7, 2017, the Applicant stated that she was requesting an appeal because she had medical information that was not available to the General Division. She explained that she was late in submitting her application for leave to appeal because she asked for an appeal in writing but was told that she was required to request permission to appeal to the Appeal Division. She received that letter in the last part of October. She currently suffers from chronic pain and is taking prescription drugs, which make her confused at times.
[16] In a letter dated May 1, 2017, the Tribunal reminded the Applicant of the specific grounds of appeal permitted under subsection 58(1) of the DESDA and asked her to provide, within a reasonable timeframe, more detailed reasons for her request for leave to appeal. On May 29, 2017, the Applicant replied that, since her last appeal, she had received a medical report from her doctor, which she said was already on file. She believed that her application had a chance of success because she was unable to work and had widespread pain, due to fibromyalgia, which limited her everyday living. Because of her condition and the medication she takes for it, she was at times very confused, and this caused her a great deal of stress.
Analysis
[17] In essence, the Applicant submits that the General Division dismissed her appeal despite medical evidence indicating that her condition was “severe and prolonged” during her MQP, according to the criteria governing CPP disability. However, outside of this broad allegation, the Applicant has not specified how, in coming to its decision, the General Division failed to observe a principle of natural justice, committed an error in law or made an erroneous finding of fact. For the most part, the Applicant’s submissions recapitulated evidence and arguments that, from what I can gather, were already presented to the General Division. Unfortunately, the Appeal Division has no mandate to rehear disability claims on their merits. While applicants are not required to prove the grounds of appeal at the leave to appeal stage, they must set out some rational basis for their submissions that correspond to the grounds of appeal set out in subsection 58(1) of the DESDA. It is not sufficient for an applicant to merely state their disagreement with the General Division’s decision, nor is it enough to express their continued conviction that their health conditions render them disabled within the meaning of the CPP.
[18] The Applicant’s most specific criticism is also a defense of her primary care physician, Dr. Pieterse, who completed a form for Great West Life suggesting that she was disabled. However, I note that it was the Respondent (at GD4-7), not the General Division, who discounted Dr. Pieterse’s assessment of the Applicant’s functionality because it was based on “self-reporting.” Although the General Division’s decision contained factual summaries of Dr. Pieterse’s reports, it offered no assessment of their worth and said nothing about what weight they were to be given relative to other items of evidence.
[19] The remainder of the Applicant’s submissions do little more than argue that the General Division failed to give certain medical reports the weight and interpretation that she would have preferred. However, it is open to an administrative tribunal charged with finding fact to weigh the evidence as it sees fit, so long as it arrives at a defensible conclusion. My review of the decision in this case indicates that the General Division analyzed in detail the Applicant’s medical issues—predominantly widespread joint pain caused by fibromyalgia—and how they affected her capacity to regularly pursue substantially gainful employment. In doing so, the General Division took into account the Applicant’s age, education and employment history before concluding there was insufficient evidence of incapacity prior to December 31, 2014. I see no indication that the General Division ignored, or gave inadequate consideration to, any significant component of the evidence that was before it.
[20] In my view, the Applicant has not put forward any grounds under subsection 58(1) that would have a reasonable chance of success on appeal.
Conclusion
[21] The application for leave to appeal is refused.