Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, S. D., applied for a Canada Pension Plan (CPP) disability pension in March 2017. The Minister denied the application and the Claimant appealed to this Tribunal. I have decided the Claimant is not eligible for the pension, so I am dismissing her appeal. These are my reasons.

Overview

[2] The Claimant is now 56 years old. She moved to Canada from India in 1989. She was a seamstress for about 13 years before leaving the paid workforce to look after her five children. In 2007 she started working as a cleaning technician for a flood and fire restoration company.

[3] The Claimant was in a car accident in August 2013. She had soft tissue injuries to her neck, right shoulder, and back. She was off work for over a year while she had treatment including physiotherapy, active rehabilitation, counselling, and medication. She tried a graduated return to work, but did not succeed.

[4] The Claimant said in her disability application that she has not been able to work since August 2013 because of pain in her upper back, right shoulder, neck, and left foot. She also had headaches, numbness in her right hand, anxiety, depression, and hypertension.^{Footnote 1} When she appealed to the Tribunal she reported more conditions including rheumatoid arthritis, chronic left ankle pain, and nasal pterygium.^{Footnote 2}

The issue in this appeal

[5] The Claimant is entitled to a CPP disability pension if she meets these conditions:

• she must have contributed to the CPP within a time frame called the “minimum qualifying period” or MQP;
• she must have a disability that is severe and prolonged; and  
• she must have become disabled on or before the end of her MQP.^{Footnote 3}

[6] The Claimant’s MQP ended on December 31, 2015.^{Footnote 4} I have to decide if she has a severe and prolonged disability, and if she was disabled by that date. It is the Claimant’s responsibility to prove this.^{Footnote 5}

Analysis

The Claimant’s disability was not severe at December 31, 2015

[7] The Claimant’s disability is severe if she is incapable regularly of pursuing any substantially gainful occupation.^{Footnote 6} That means her disability has to prevent her from earning a living at any type of job.^{Footnote 7}

[8] The Claimant told me her recovery was “off and on”. She seemed to improve but then her pain would return. She has not been able to do heavy duties at home since the accident, and she started to have trouble with small tasks as well. Her existing pain got worse and she had pain and swelling in her arms, hands and feet.

[9] The Claimant tried to go back to her old job. She could not remember any of the details or dates. All she remembered was that she could not perform her duties because her right shoulder, left hand, and left foot were bothering her. She tried to return twice, and in September 2015 her doctor told her to stop. She has not worked anywhere since then. She loved her job, and would be doing that if she could. She has not applied for other jobs because she does not think she can do them.

[10] The Claimant told me she does not know what each day will be like. Sometimes she can go two or three days without pain, but then it comes back. On those days she cannot stand or walk for more than 15 minutes before her feet start hurting. She cannot sit for more than half an hour before her shoulders and back start hurting. Even without her pain she is tired all the time. She barely sleeps at night, so she has no energy and she has to lie down during the day. 

[11] The Claimant told me she feels very down, stressed, and confused. She cannot focus and she starts to panic. Sometimes she stays in bed all day. On other days she makes tea for herself; then she does light cleaning for five or ten minutes. She has an easy lunch of canned or takeout food. Her children help her with all the household chores and cook most of the meals. She takes one or two 15-minute walks each day so she can digest her food. Other than that, she only goes out if she has to.

[12] The Claimant’s view of how her condition affects her ability to work is important. She feels she has been disabled for quite some time. But there has to be objective evidence showing she was disabled at December 31, 2015.^{Footnote 8} That means I have to look at what doctors and other professionals said about her condition around that time.

[13] There is no doubt the Claimant’s medical condition affected her ability to go back to her old job. Her medical record shows she had headaches and persistent neck, back and shoulder pain since the accident. In early 2014 she started having pain in her right hand and wrist. Foot pain started in 2015. She was diagnosed with anxiety and depression in January 2014. All these were still present at December 2015.^{Footnote 9} The problem is that the medical information tells me the Claimant likely had the capacity to perform some type of work at that time, even if she could not do her usual job.

Report of Alice Tong, occupational therapist

[14] The Claimant’s graduated return to work effort is discussed in a December 2015 progress report by Alice Tong, an occupational therapist who saw the Claimant around that time. Ms. Tong had access to the Claimant’s insurance file, so her report is a useful and accurate summary of the Claimant’s situation.^{Footnote 10}

[15] The report said the Claimant completed an active rehabilitation program in October 2014. She was discharged as able to meet the demands of her job. She started a graduated return to work program in September 2014 and was to be working full-time within 10 weeks. However, she could not do this because she had shoulder pain. The same thing happened with a similar plan that started in March 2015. A revised plan started in July 2015. The Claimant’s duties were broken down by task and her hours gradually increased. She was expected to return to full-time hours in 13 weeks.^{Footnote 11}

[16] The Claimant did not return to full-time hours. She had been seeing a chiropractor for Achilles tendonitis in her left foot, and in September 2015 he recommended she stay off work until this was completed. She saw a different chiropractor in October 2015 for treatment of right trapezius pain. He recommended she stay off work and avoid heavy lifting and strenuous household chores.^{Footnote 12} The Claimant’s family doctor recommended she stay off work until she had been seen by a rheumatologist, which was scheduled for January 2016.^{Footnote 13}

[17] The Claimant told Ms. Tong she had the following ongoing concerns about her recovery:

• She had pain in the right side of her neck and right shoulder
• She had pain in her left leg from her thigh down to her foot, and swelling in her left foot
• Because her left leg pain made her limp, she had pain in her left hip.

[18] She told Ms. Tong she spent most of the day sitting at home. She could only do light housework, and only a few things at a time. She limited the amount of time she spent driving. She also had symptoms of depression and anxiety. These included feeling hopeless and helpless about her physical condition. She lacked interest and motivation. She had no appetite. She was irritable. She had difficulty sleeping, and she had no energy.

[19] Ms. Tong said the Claimant’s anxiety and focus on her pain limited her recovery and affected her ability to complete activities of daily living. Pain was a major barrier that kept her from most daily activity. She anticipated the Claimant would return to pre-injury function after these issues were addressed, and if her symptoms decreased with treatment by a rheumatologist. She thought the Claimant’s employer might accommodate a part-time position if her condition plateaued. She encouraged the Claimant to increase her physical activity without weight bearing.

Reports of Dr. Khan, psychiatrist

[20] Dr. Khan started treating the Claimant in January 2014. He diagnosed her with an anxiety and depressive disorder in January 2014.^{Footnote 14} In the spring of 2014 she began taking trazodone and bupropion (Wellbutrin)^{Footnote 15}. She started group therapy.^{Footnote 16} By September she told Dr. Khan she was feeling much better.^{Footnote 17} When she tried to return to work the next month she became fatigued and stressed, and she could not concentrate.^{Footnote 18} However, in November she started seeing a counsellor Ms. Combow for individual therapy.^{Footnote 19} She told Dr. Khan she was “doing really well”. She had been taking Ritalin, which helped her fatigue. She did not feel depressed and her sleep was good. She did not want to go back to work because she had swelling in her left leg.^{Footnote 20}

[21] In March she told Dr. Khan her anxiety and depression were under control. She felt better physically. She wanted to go back to work but she was worried about the stress. She wondered if she should try going part-time. Dr. Khan encouraged her to go back to work full time and “give it her best shot”^{Footnote 21}. In August the Claimant was concerned about her pain and worried about her future. She was on a gradual return to work program. Dr. Khan again encouraged her to first try working full time.^{Footnote 22}

[22] In December 2015 the Claimant told Dr. Khan her depression and her sleep were better. She was complaining of soft tissue pain, but Dr. Khan told her that rather than consuming herself with these complaints she should do some exercise, yoga, and meditation. He said “if she wants to consider another job if she was physically capable”.^{Footnote 23}

[23] The Minister said this meant Dr. Khan thought the Claimant was capable of some type of work.^{Footnote 24} I don’t read the sentence that way. I think Dr. Khan meant there were no psychological barriers preventing the Claimant from working. He left open the possibility the Claimant was not physically capable of doing any job. He didn’t think he was qualified to make that judgment. However, the other evidence shows the Claimant was capable of some type of work.

The Claimant had work capacity

[24] The Claimant’s representative urged me to place more weight on the reports by the Claimant’s family doctors, as these gave a more comprehensive picture of the Claimant’s condition at December 2015. I don’t think they do. I recognize the Claimant saw her family doctors more frequently than she saw Dr. Khan. She also saw a counsellor, Kimi Combow, once or twice a month. As I said above, their reports show the Claimant had multiple, ongoing concerns. But Dr. Khan and Ms. Tong were aware of and took note of all these complaints. They considered the Claimant’s overall medical condition in reaching their conclusions.

[25] The medical evidence tells me the Claimant had some work capacity at December 2015. Her anxiety and depression were not debilitating, because her psychiatrist was encouraging her to work. Her physical barriers were pain that prevented her from standing, walking, overhead lifting and heavy lifting. She had reported hand symptoms off and on, but there is no evidence they were a significant problem at that time. There is no evidence she had problems with sitting.

[26] The Claimant’s last job was a very physical one. She had to clean up items and pack them for storage. It involved a lot of heavy lifting and carrying. It is obvious from her failed work attempt that she could not do this job in December 2015. But she likely could have done a seated job that did not involve heavy use of her shoulder.

[27] In deciding if the Claimant had work capacity I have to look at things like her age, level of education, language proficiency, and past work and life experience.^{Footnote 25} In December 2015 the Claimant was 52 years old. She has a high school education from India. She told me she has little to no ability to read or write in English. She does not speak or understand it very well. She has only worked in jobs requiring manual labour.

[28] These factors suggest the Claimant has few employment options. However, I don’t think they mean she has no work capacity. She lives in the Vancouver area where there is a large Punjabi-speaking community and workforce. Her English is good enough that she could function at her previous jobs. Although she has no clerical or computer skills, she has 13 years of experience as a seamstress. She told me she did not think she could do this job, she did not provide any evidence to explain why she could not do it or something similar at December 2015.

[29] I recognize the Claimant was still attached to her previous employer at December 2015. They were trying to get her back to her previous job. Although she was supposed to be doing light duties, she told me she was not because none were available. She did not have the chance to try something less demanding. If she had tried lighter, sedentary work and failed, that might have persuaded me her condition was severe despite what the medical evidence showed. As it is, I have to weigh the medical evidence against her own recollection of how she was feeling at that time. I think the medical evidence is more reliable than the Claimant’s memory, particularly since it shows what she was telling her doctors and what they observed leading up to December 31, 2015. That evidence tells me the Claimant did not have a severe disability at that time.

Conclusion

[30] I have a great deal of sympathy for the Claimant. However, she has to prove her case on a balance of probabilities, and she has not done so. I cannot find she was incapable regularly of pursuing any substantially gainful occupation by December 31, 2015. Because I found her condition was not severe, I did not consider whether it was prolonged.

[31] The appeal is dismissed.