Canada Pension Plan (CPP) disability

Reasons and Decision

Overview

[1] The Respondent received the Appellant’s application for a Canada Pension Plan (CPP) disability pension on October 14, 2015. The Appellant claimed that she was disabled because chronic pain, fibromyalgia, depression, and rheumatoid arthritis. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).

[2] To be eligible for a CPP disability pension, the Appellant must meet the requirements that are set out in the CPP. More specifically, the Appellant must be found disabled as defined in the CPP on or before the end of the minimum qualifying period (MQP). The calculation of the MQP is based on the Appellant’s contributions to the CPP. The Tribunal finds the Appellant’s MQP to be December 31, 2013.

[3] This appeal was heard by Videoconference for the following reasons:

1. The method of proceeding is most appropriate to allow for multiple participants.
2. Videoconferencing is available within a reasonable distance of the area where the Appellant lives
3. The issues under appeal are complex.
4. 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.

[4] The following people attended the hearing:

T. R. Appellant

Lucy Yuan Representative

Sukhwant Hundal Interpreter

[5] The Tribunal has decided that the Appellant is eligible for a CPP disability pension for the reasons set out below.

Evidence

Questionnaire for CPP disability benefit application

[6] On October 14, 2015 the Appellant applied for a CPP disability benefit. She enclosed with her application a questionnaire for CPP disability benefits responding to questions about her personal and medical history.

Personal history

[7] The Appellant detailed that she was born in 1967 and lived in Surrey British Columbia.

[8] She detailed that she had a grade 10 education and no further skills, diplomas, or other training. She was most recently employed as a box packer from 2011 to 2012. She stopped working because of a medical condition.

[9] The Appellant indicated that she was self-employed from 2010 to 2011 when she stopped due to her medical condition.

Medical information

[10] The Appellant detailed that she could no longer work as a result of her chronic pain syndrome, fibromyalgia, depression, rheumatoid arthritis.

[11] The Appellant endorsed the following functional limitations:

• Sitting and standing for 15 minutes;
• Walking for 10-15 minutes;
• Lifting 5 pounds;
• Difficulty reaching;
• Bending causes pain;
• Personal needs including putting shoes on;
• Difficulty with urinary incontinence;
• Requires assistance with household maintenance;
• Anxiety from public transportation;
• Difficulty sleeping;
• difficulty concentrating, difficult remembering;
• driving for a maximum of 30 minutes; and
• Difficulty with sight and sound.

Medical report for CPP disability benefit application

[12] On September 18, 2015 Dr. Sohal submitted a medical report in support of the Appellant`s CPP disability benefit application.

[13] Dr. Sohal detailed that he had known the Appellant for 17 years. He started to treat her for her main medical condition in June 2010. These medical conditions included the following:

• Chronic myofascial pain syndrome;
• Multiple areas of pain as a result of multiple motor vehicle accidents.

[14] Dr. Sohal further indicated that the Appellant had chronic myofascial pain syndrome and whole body pain and tenderness.

[15] With respect to prognosis Dr. Sohal detailed that it was very poor and that she had been unable to work since November 27, 2012.

Additional evidence

[16] On January 2, 2013 Dr. Yorke, rheumatologist, detailed that the Appellant had problems with her lower and upper extremities and had developed myofascial pain. He indicated that she was being treated for this condition with medication and paramedical treatment.

[17] On April 30, 2013 Dr. Yorke detailed that the Appellant had left ankle, left middle digit, bilateral wrist, left neck, left shoulder, left trunk, and left arm pain. She further complained of pain at the lower back, left hip, left knee and left ankle. Dr. Yorke opined that the Appellant had developed myofascial pain syndrome. It was noted that the Appellant continued with chiropractic and massage therapy, was taking Celebrex 200 mg twice daily, Advil 2-3 tablets per day and Ativan at night.

[18] On July 17, 2013 Dr. Sidhu detailed that the Appellant had major depression disorder and marked anxiety features.

[19] On April 9, 2014 Dr. Yorke provided a medical legal report in support of the Appellant`s motor vehicle claim. Dr. York opined that the Appellant suffered a musculoskeletal injury following a November 27, 2012 front-end impact car accident. Since that time the Appellant had been unable to work. Dr. Yorke noted that the Appellant presented with chronic generalized musculoskeletal pain. The pain was migratory in nature but had not in any way been in remission. Dr. Yorke concluded that recovery for the Appellant`s physical and psychological conditions remained uncertain at that time.

[20] In a June 19, 2014 Physiotherapy report it was detailed that the Appellant had an assessment with complaints of neck, back, throat, right leg, and left arm pain. It was noted that the Appellant presented with decreased mobility, range of motion in her neck, shoulder, and low back.

[21] On July 9, 2014 Dr. Yorke wrote a consultation report to Dr. Sohal detailing that the Appellant had chronic myofascial pain syndrome. He noted her prognosis for recovery was guarded at the present time. Dr. Yorke recommended that she pursue a more vigorous exercise program, morning and evening, as taught by her physiotherapist. Further it was recommended that she walk for 15 minutes twice per day at least.

[22] On September 7, 2014 Dr. Sidhu provided an update psychological overview. Dr. Sidhu detailed that he had completed four sessions with the Appellant. He noted that the Appellant was working on recovering by using cognitive behavioural therapy. He recommended another further 10-12 counselling sessions.

[23] An August 13, 2015 MRI report details that the Appellant had right sciatic with a moderate central focal posterior disc herniation at the L5-S1 level and a small right paracentral focal disc herniation at the L4-L5 level.

[24] On December 8, 2015 Dr. Sidhu, psychiatrist, detailed that the Appellant had major depressive disorder. It was noted that the Appellant had been experiencing persistent sadness and increase in her anxiety. She was struggling with ongoing pain and was pre-occupied about her various somatic issues. The Appellant reported ongoing difficulties with headaches, back pain, chest pain, neck pain, bilateral shoulder pain, arm pain, and difficulty walking due to pain in her legs. She also noted difficulties in her concentration and her memory. She was becoming easily irritable. Dr. Sidhu noted that the Appellant had poor sleeping and woke in the morning to feel poorly rested. She was continuing to struggle in her day to day functioning. Dr. Sidhu`s report mirrored an earlier report from October 7, 2014.

January 21, 2017 CORE report

[25] The Tribunal found the CORE report of limited probative value. The report consisted primarily of subjective complaints expressed by the Appellant more than 3 years post MQP by a physician who was not involved in the treatment of the Appellant. The dominant aspect of the report is a reciting of previous medical assessments. It provides little in the way of medical analysis and attempts to assert findings in respect of severe and prolonged. This is the role of the Tribunal member not of a physician. The report is full of advocacy and short on objective medical analysis. For these reasons the Tribunal has not accorded any weight to this report.

Testimony of the Appellant

Personal and employment background

[26] The Appellant stated that she is 50 years old.

[27] She immigrated to Canada in 1987. She completed grade 10 in India. When she moved to Canada she took English as a second language for a short period of time. The Appellant stated that her ability to engage in English is limited. She stated that she has some challenges with reading the language and understanding what words mean. She stated that she also has a challenge pronouncing big words.

[28] The Appellant was asked about her ability to write in English. She confirmed that she can spell words but she has difficulty writing her own thoughts and sentences down.

[29] The Appellant stated that she has tried to take a few additional English classes. However, the courses are no longer offered.

[30] The Appellant was asked about her ability to use a computer. She stated that she has a limited ability to use a computer. She stated that she could write an email but besides that she does not have much capability with a computer.

[31] The Appellant stated that she worked as a packer for one year prior to stopping work. Prior to that she worked in customer service and sales work for Punjabi people. She stated that she did this work for a number of years. She stated that she used both Punjabi and English in this employment.

[32] She stated that she stopped working as a packer in November 2012 as a result of a motor vehicle accident. The Appellant stated that she stopped working because her body was not working properly. She stated that she had leg, back, pelvic, and stomach pain. As a result of these pain symptoms she was unable to continue working.

[33] She indicated that she had a number of other motor vehicle accidents prior to her November 2012 motor vehicle accidents.

[34] She stated that she had been in 5 motor vehicle accidents prior to the end of 2013.

[35] The Appellant was asked about her job duties as a packer. She would make boxes. Her responsibilities included pulling pilots, climbing stairs, walking. The Appellant stated that she was responsible for making six boxes in one minute. She was required to lift and carry boxes around. She stated boxes would come on an assembly line and she was required to work fast.

[36] The Appellant stated that she has not attempted any schooling or retraining since going off of work in November 2012.

Attempt to return to work

[37] The Appellant was asked whether she attempted to return to work after November 2012. She stated that her body was not fine so she was unable to return to work. The Appellant stated that she applied for other work after working as a packer.

[38] She stated that she volunteered working at a gas station in the hope that she would be hired as an employee. The Appellant stated that the gas station work was lighter and slower than her work as a packer.

[39] However, she was not able to keep up with the demands of the position. She was unable to use stairs at the gas station. She was not able to keep up with the pace of the work. She indicated that her leg, back, and general pain interfered with her ability to keep up with other employees. As a result she was advised that she would not be hired as an employee. She stated that she worked there for approximately 2 weeks. She went for 3-4 hours during the day time. She stated that she worked 4-6 shifts over a two week period.

[40] The Appellant stated that she also applied for other employment as a salesperson for cutlery and other objects. However, she was required to purchase the objects in advance. The Appellant described what appeared to be a multilevel marketing scheme. She was unable to afford the objects and therefore could not engage in the employment.

[41] The Appellant was asked whether she felt she could do door to door sales. She stated that she could not have done the work in any event because of her pain.

[42] She stated that she tried to volunteer but she also had trouble driving and could not get around very well.

Functional limitations

[43] The Appellant was asked about the extent of her pain symptoms. She stated that she would rate her pain as an 8 or 9 out of 10 on a 10 point pain scale. She stated that she has had to go to the hospital because of the extent of her pain.

[44] The Appellant stated that her pain is worse when eating.

[45] The Appellant stated that she has a sciatic nerve problem and a problem with a disc in her lower back.

[46] The Appellant was asked about her symptoms prior to the end of her MQP. The Appellant stated that sitting was challenging. She had to move after every 5-10 minutes. She stated that standing was difficult. She was able to stand for less than 5 minutes at a time. She stated that she has weakness in her legs and she is unable to bear weight. The Appellant stated that she had difficulties with walking. She gets strange feelings in her feet, including stiffness and numbness. She stated that she cannot lift more than a few pounds. She has difficulties using a pinch grip and cannot do household chores such as laundry, and vacuuming.

[47] The Appellant stated that she had troubles with driving. She stated that she could only drive for a short distance. She could not properly accelerate in her vehicle because of pain symptoms. She also had difficulties with sitting and focusing. As a result she needs to be a passenger and rely on others for travelling.

[48] The Appellant stated that since her motor vehicle accident in 2012 she has had pain when eating. She stated that her problems with eating have affected her life. She stated that she has pain in her mouth.

[49] The Appellant stated that she would have nausea and abdominal pain on occasion. As a result she has problems swallowing both medication and food.

[50] The Appellant stated that she has vision problems. She stated that she sees colours and she cannot see anything.

[51] She stated that as a result she is no longer independent and has to rely upon her children to assist with her activities of daily living and household activities.

[52] The Appellant stated that after her accident in 2010 she had difficulties with focusing and concentration. She stated that she has a difficult time concentrating on a line of questions. She also has a challenge with her memory. She stated that she forgets names and dates. She stated that she gets confused with directions.

[53] The Appellant stated that prior to her MQP she would get 2-4 hours a night. She has to take nasal spray, use a breathing pump, and take medication.

[54] The Appellant was asked whether she had any heart pains prior to the end of her MQP. She stated that she had chest pain and breast pain and swelling. She stated that sometimes her heartbeat became faster and at an irregular rate.

[55] The Appellant stated that she has bladder problems. She experiences incontinence when she coughs and bends to pick objects up.

[56] The Appellant was asked about her arthritis. She stated that she had this prior to her MQP. She noted she had swelling, stiffness, and pain in her joints.

[57] The Appellant was asked about her osteoporosis. She stated this started prior to her MQP. She indicated that this contributed to her pain and stiffness. She stated that her swelling and stiffness were present daily.

[58] The Appellant was asked about her anemia. She experienced this condition prior to her MQP. She stated that as a result she experiences fatigue and achiness. She experienced hair and weight loss as a result of her anemia.

[59] The Appellant was asked whether she experienced any mood difficulties as a result of her medical conditions. She stated that she experienced sadness and helplessness. She stated she started to experience these symptoms after 2010. After her accident in 2012 she became more depressed. She stated at that time she was taking medication for her depression. She stated that she also sought counselling for her depression. She stated that the counselling helped a little. She stated that her depression impacted her ability to work. She indicated that her mood was very low and tired. She stated that as a result she was slow with her work. She would cry a lot and she could not sleep properly. As a result she was in pain and had headaches and these impacted her ability to work.

[60] The Appellant detailed that as a result of her depression her search for employment was impacted. She stated that she had difficulties with driving and that her mood was not good so she was so scared that she did not want to have another accident.

[61] The Appellant was asked whether any of her symptoms have improved since November 2012. She stated that her medical conditions have only worsened over the years.

Rehabilitation

[62] The Appellant stated that she was engaged in physiotherapy, massage therapy, chiropractor, and acupuncture.

[63] The Appellant was asked about her physiotherapy treatment. She said she took physiotherapy in 2010. She then had another assessment in July 2014. She stated that she received treatment at that time. She engaged in 8-10 sessions.

[64] The Appellant was asked about Dr. Yorke’s recommendations for an exercise program. The Appellant stated that she has too much pain in her body to engage in the recommended exercise program. The Appellant stated that Dr. Sohal recommended against Dr. Yorke’s prescribed treatment program on account of her entire list of medical conditions.

[65] The Appellant was asked about future treatment for her medical conditions. She stated that she is on a waitlist to see a specialist for her back. However, she understands that surgery may not be successful or recommended and in any event she has a chronic disease.

[66] The Appellant stated that her physicians have advised her that she is unable to return to work. The Appellant stated that if she had the ability, she would return to work.

Submissions

[67] It is the Appellant’s position that she has a severe and prolonged disability inclusive of her physical and psychological disabilities.

[68] The Representative submitted that the combination of her medical conditions has left the Appellant unable to work since November 2012.

[69] The Respondent submitted that the Appellant does not qualify for a disability pension because the Appellant did not have a severe and prolonged disability on or before her MQP.

Analysis

Test for a disability pension

[70] The Appellant must prove on a balance of probabilities, or that it is more likely than not, that she was disabled as defined in the CPP on or before the end of the MQP.

[71] 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 MQP.

[72] 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. 

Severe

[73] The first consideration in assessing whether there is a severe disability is to determine whether there is objective medical evidence to establish the presence of a disability that may give rise to a determination of severe within the meaning of the CPP.

[74] In this case the Tribunal is satisfied that there exists objective medical information to support the assertion that the Appellant did have a medical condition present at or before her MQP that could have given rise to a determination of severe. Specifically the Tribunal accepts that the Appellant did injure herself in a motor vehicle accident on November 27, 2012 and that as a result of this accident she suffered musculoskeletal injuries that developed into chronic pain. This is evidenced by Dr. Sohal and Dr. Yorke in their consultation reports and medical reports.

[75] While the Tribunal accepts that the Appellant eventually developed depression there is a lack of evidence to establish the extent or nature of this condition on or before her MQP. Specifically the best report on this did not come until approximately 2 years post MQP when Dr. Sidhu opined in his December 8, 2015 report on the impact the Appellant’s mental illness was having on her level of function.

[76] As such the Tribunal has limited it’s consideration to the extent and nature of the Appellant’s soft tissue injury which developed into chronic pain.

[77] In respect of her chronic pain condition Dr. Sohal has opined that the condition had left the Appellant with whole body pain and tenderness.

[78] Dr. Yorke had opined that the Appellant had extensive pain throughout numerous parts of her body. He further noted that the Appellant`s pain was migratory in nature and had not in any way been in remission.

[79] In respect of the symptoms experienced by the Appellant she was clear in her testimony that her pain is a constant 8-9 out of 10 on a 10 point pain scale. She was asked squarely about her symptoms prior to the end of her MQP and responded that since that she has had difficulty moving. She noted that standing was difficult and she was unable to remain upright for greater than 5 minutes at a time. She had general weakness, stiffness, and numbness. She noted that she could not lift much and had challenged with activities of daily living and home maintenance, such as cleaning, laundry, and vacuuming.

[80] The Appellant further noted that she is no longer independent and relies upon family members for her activities of daily living and household activities.

[81] In assessing her level of functionality the June 2014 physiotherapy report indicated that the Appellant presented with complaints in her neck, back throat, arm and leg. It was further noted that she presented with decreased mobility and range of motion.  

[82] In considering the full impact of the Appellant`s medical conditions both Dr. Yorke and Dr. Sohal had opined that the Appellant had been unable to work since her November 2012 motor vehicle accident. Importantly, there is no evidence that squarely addresses and conflicts with these opinions. The Tribunal accepts these medical opinions and finds the opinions persuasive.

[83] On balance the Tribunal is satisfied that the Appellant has a severe disability within the meaning of the CPP from her chronic pain syndrome.

[84] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). This means that when deciding whether a person’s disability is severe, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience.

[85] In this case the Appellant was born in India and immigrated to Canada in 1987. Her ability to speak, read, and understand English is somewhat limited. She has almost no ability to write English. Moreover, the Appellant has limited experience with technology including the use of a computer. Her work history is comprised of labour intensive work.

[86] The Appellant is clearly at a disadvantage vis-à-vis other job applicants given the nature of her medical condition, her limited education and vocational background, and her difficulties with both written and spoken English.

[87] Given these facts the test set out in Villani supports a finding of severe within the meaning of the CPP.

[88] For these reasons the Tribunal finds that the Appellant`s chronic pain is severe within the meaning of the CPP.

Prolonged

[89] The Tribunal is satisfied on balance that the Appellant`s chronic pain is prolonged. It has been approximately 5 years since her November 2012 motor vehicle accident and the Appellant has stated that her condition has only worsened in that time. Moreover Dr. Sohal has opined that the Appellant`s prognosis is poor. These facts are not controverted and support a finding of prolonged within the meaning of the CPP.

Conclusion

[90] The Tribunal finds that the Appellant had a severe and prolonged disability in November 2012, when she was involved in a motor vehicle accident and since which time she has been unable to return to any work. For payment purposes, a person cannot be deemed disabled more than fifteen months before the Respondent received the application for a disability pension (paragraph 42(2)(b) of the CPP). The application was received in October 2015; therefore the Appellant is deemed disabled in July 2014. According to section 69 of the CPP, payments start four months after the deemed date of disability. Payments will start as of November 2014.

[91] The appeal is allowed.