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Reasons and decision
Overview
[1] The Respondent received the Appellant’s application for a Canada Pension Plan (CPP) disability pension on February 10, 2016. The Appellant claimed that she was disabled because fibromyalgia and general pain. 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, 2018.
[3] This appeal was heard by Teleconference for the following reasons:
- The Appellant will be the only party attending the hearing.
- The method of proceeding provides for the accommodations required by the parties or participants.
- The issues under appeal are complex.
- 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 Tribunal has decided that the Appellant is eligible for a CPP disability pension for the reasons set out below.
Preliminary issues
[5] As the MQP is in the future the Tribunal limited consideration of entitlement up to and including the date of hearing.
Evidence
Questionnaire for disability benefit application
[6] On February 10, 2016 the Appellant submitted her application for disability benefits. She enclosed responses to a questionnaire provided by the Respondent. The questionnaire contained questions in respect of both the Appellant’s personal and medical history.
Personal history
[7] The Appellant was 48 years old at the date of her application. She had a general education degree and no additional training or education.
[8] She had been most recently employed as a data entry clerk until May 2015. She stopped working because of increased pain symptoms.
[9] Prior to this employment he Appellant had been a green house worker and worked with equipment and grounds maintenance. She had stopped this work because she was provided with an accommodated position as a data entry clerk.
[10] The Appellant indicated that she was in receipt of long term disability benefits through Sunlife.
Medical history
[11] The Appellant detailed that she could no longer work because of her medical condition in May 2015.
[12] She detailed that she had degenerative disc disease. As a result she could not stand or sit for long periods of time.
[13] The Appellant endorsed the following functional limitations:
- Sitting and standing for 10 minutes
- Walking for .5 – 1.0 km
- Very light lifting;
- Limited bending forward, backwards, and twisting;
- Only light housework;
- When driving stopping every 20 minutes; and
- Broken sleep patterns due to pain.
[14] The Appellant indicated that she was currently being medicated with tramacat and zopiclone. She detailed that she was seeing a chiropractor for maintenance treatment and received cortisone injections every 3 months.
Medical report for disability benefit application
[15] On July 12, 2016 a medical report was provided to the Respondent. The report indicated that the Appellant had been a patient of Dr. Prinsloo since 2011 and that he had started to treat her for per main medical condition in May 2013.
[16] Dr. Prinsloo detailed that the Appellant had degenerative changes of the lumbar spine. Further notes of moderate right femoral narrowing of the L5-S1 and posterior disc margins contracting at the L5-S1 root were also noted.
[17] Dr. Prinsloo detailed that the Appellant had been involved in a motor vehicle collision in 2000. She stated that her condition worsened after working in a greenhouse from recurrent heavy lifting.
[18] Dr. Prinsloo indicated that the Appellant had a number of functional limitations. These included:
- forward bending;
- bending backwards;
- side bending;
- sitting limited to 3 hours or 66 percent of the day; and
- limited hours of work.
[19] She was noted to be prescribed tramacet and was seeing a chiropractor for maintenance. She had also engaged in physiotherapy, home exercise, and yoga.
[20] Dr. Prinsloo opined that the Appellant’s prognosis was poor. She had a chronic degenerative condition that would likely worsen over time.
Additional evidence
[21] On November 18, 2014 Dr. Donald, occupational health medical officer provided a fitness to work evaluation. Dr. Donald detailed that the Appellant had fluctuating limitations and restrictions. She may be medically able to perform some activities one day but not on another day. She had the potential for some improvement with additional treatment. It was recommended that the Appellant be restricted from engaging in any job duties that resulted in symptoms of numbness or tingling in her legs.
[22] Dr. Donald opined that even if the Appellant were offered sedentary employment she would still need to be accommodated, including avoiding prolonged sitting with the ability to alternate between standing, walking, and sitting according to her level of comfort.
[23] In a September 22, 2015 consult letter Dr. Henderson detailed that based upon the Appellant’s imaging and information provided surgical intervention would offer very little in terms of prognosis and outcome.
[24] On June 28, 2016 Dr. Prinsloo completed a medical legal letter in support of the Appellant’s CPP application. Dr. Prinsloo detailed that the Appellant struggled with chronic back pain with intermittent neurological symptoms. She had been cooperative in all investigations and actively involved in consultations. She noted that despite following all recommendations the Appellant had not seen any improvement of her symptoms. Her condition was managed with medication but impaired her ability to function cognitively and operate heavy equipment.
[25] It was noted that the Appellant’s condition would slowly deteriorate and she would lose essential functions. As a result of this opinion Dr. Prinsloo opined that the Appellant was unable to work and should qualify for benefits.
Testimony of the Appellant
[26] The Appellant stated that she is off work because she is in pain all the time. She stated that she takes pills for her pain. She is limited in drugs she can take because of other health issues.
[27] The Appellant stated that she was moved from her regular job to an accommodated position. Her condition after being accommodated got a lot worse likely because she could not move.
[28] The Appellant stated that she was put in a data entry job. She stated that she thought she could do that at home but her employer did not like that idea.
[29] As a result the Appellant stated here she sits at home and in pain.
Work history
[30] The Appellant stated that she started to work for the federal government in 2003. She started as a security escort. Her job was eliminated and she was transferred to work in a greenhouse. She stated that it was heavy work. She stated that she ended up going down to three days a week because the work was too painful on her back.
[31] She was then placed into an office job doing data entry. She stated that she had to remain static and the left side of her back started to get bad. As a result she stopped working all together.
[32] The Appellant stated that prior to working for the federal government she only had menial work as a waitress, cleaner, and a cashier.
[33] The Appellant confirmed that she has no other training or education aside from her GED.
Accommodation
[34] The Appellant stated that she was accommodated into a data entry job. She was provided with ergonomic assistance. She was provided with an opportunity to move around as she required. However, this did not abate her pain symptoms. Rather her pain increased because she was static. She stated that as long as she was moving it didn’t hurt. However, as soon as she stopped moving it became awful.
[35] The Appellant stated that when she was no longer able to do the data entry at work she asked if she could do it from home. However, her employer did not want to entertain the idea.
[36] As a result she was placed onto long term disability.
[37] The Appellant stated that she was accepted onto long term disability in November 2014 under her own occupation definition. She stated that she is still on long term disability benefits and has now been approved for a medical pension.
[38] The Appellant stated that she has not looked for any work since leaving the Federal Government. She stated that the reason why is that she cannot do anything. The Appellant stated that her medication causes her to sleep. She stated that her medication causes her to be unable to function. When she is working she had to work through her pain. She stated that she had problems with this. She stated that there was one time she was so messed up that her employer sent her home.
[39] The Appellant stated that her body says she cannot work. Whenever she does any physical activities she is in pain.
Day to day activities
[40] The Appellant stated that her husband does 90% of the work around the house and the yard. The Appellant stated that she only putters around. She has gotten rid of most of her flowers. For instance she will take care of her remaining flowers and she will be too sore for anything the next day.
[41] She does what she can but cannot finish making meals. The Appellant cannot do heavy activities such as dishes, laundry, and cleaning. She is restricted to dusting and light work.
[42] The Appellant stated that she does not do a whole lot.
[43] The Appellant stated that she finds showering hard because she gets pain up her legs. She has a problem going up stairs. When she goes upstairs she feels an increase in her pain symptoms.
[44] The Appellant stated that she only goes for small walks a couple of times a day on her property.
[45] The Appellant stated that she used to be really active but is not anymore. She used to boat, travel, and hike but can no longer engage in those activities. She stated that she finds this very frustrating.
Treatment
[46] The Appellant stated that she continues to go to a chiropractor regularly.
[47] She stated that she was seeing a kinesiologist who gave her stretches to do. She continues to do those at home.
[48] The Appellant stated that her physician has referred her to a pain clinic but there is no indication of when she will have an appointment.
[49] The Appellant stated that she continued to receive injections. She stated the injections provide her with some acute relief.
Submissions
[50] The Appellant submitted that she finds it frustrating that she cannot work. She stated that she wants to work but is unable to do so.
[51] The Respondent submitted that the Appellant does not qualify for a disability pension because she does not have a severe and prolonged disability within the meaning of the CPP.
Analysis
Test for a disability pension
[52] 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.
[53] 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) not 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.
[54] 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
[55] The Tribunal is satisfied on balance that the Appellant has a severe disability.
[56] The first consideration is whether there is objective medical evidence to support a finding of a severe disability. In this case, Dr. Prinsloo has opined that the Appellant suffers from degenerative changes at the L5-S1 level of her spine. Dr. Prinsloo has further opined that the Appellant has chronic pain in her lower back.
[57] The Tribunal is satisfied that the medical evidence does detail findings able to support a severe disability.
[58] A secondary question then arises about whether the medical conditions on file actually are severe within the meaning of the CPP.
[59] The medical evidence supports a finding of severe within the meaning of the CPP.
[60] Dr. Prinsloo detailed in his medical report that the Appellant had significant functional limitations. The Appellant was limited in bending forwards, backwards, and to the side. Further she could not sit for greater than 3 hours or two thirds of the day. Finally she was also limited in the number of hours that she worked.
[61] Dr. Donald detailed that the Appellant was restricted from engaging in any job duties that resulted in numbness or tingling in her legs. He further noted that she would need to be accommodated into sedentary employment. However, even if accommodated she would need the ability to alternate between standing, walking, and sitting. Dr. Donald further noted that the Appellant`s situation was complex as she had fluctuating symptoms such that she may be able to perform some activities one day but not on other days.
[62] It is most evident from Dr. Donald`s report that the Appellant would require significant accommodations and could only work in a position where she was able to ambulate as required. It is difficult to surmise the type of employment and employer that would be able to accommodate such varied work contexts. It is possible that such a sedentary position exists, however consideration must be given to the particular Appellant.
[63] 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.
[64] The Appellant was 48 years old at the time of her application, had a GED and no additional education or training. She had historically worked heavy and or physically demanding jobs such as a security escort and greenhouse worker. Importantly, the Appellant is also impaired in functioning cognitively as a result of her medications. It is evident that given her inability to function cognitively she would also be limited from enhancing her skills and education through additional training.
[65] As such the Appellant has limited transferable skills, is older, cannot work in an active or static job, cannot be further trained, and would require extensive accommodations. Given these facts it is evident that the Appellant`s disc herniation and associated chronic pain are severe and thus leave her incapable regularly of pursuing any substantially gainful employment.
Prolonged
[66] Dr. Prinsloo opined that the Appellant’s prognosis was poor. Her condition was chronic and degenerative and would likely worsen over time. The Tribunal is satisfied on balance that the Appellant has a prolonged disability within the meaning of the CPP.
Conclusion
[67] The Tribunal finds that the Appellant had a severe and prolonged disability in May 2015, when she was no longer able to continue working in her accommodated position due to increased pain and symptoms. According to section 69 of the CPP, payments start four months after the date of disability. Payments start as of September 2015.
[68] The appeal is allowed.