Canada Pension Plan (CPP) disability

Decision

[1] The Claimant made an application for CPP disability pension in December 2017.^{Footnote 1} The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal. I am dismissing the appeal. The Claimant is not entitled to a Canada Pension Plan (CPP) disability pension. These are my reasons why.

Overview

[2] The Claimant graduated with a nursing diploma in 1980 in China. She worked full time in a provincial hospital from 1980 to 2004. For about twenty years she provided nursing care to children. She moved to Canada in 2005. She studied English for more than a year in full day classes at a free school that was designed to help immigrants learn English. The Claimant started to look for work in 2007. She worked at a factory, printing company, and then in 2009 she went to Royal College and graduated with a diploma in Early Childhood Education and achieved the 280 hour requirement. While working as an assistant in a daycare in 2011 she was invited to be a partner. The Claimant became a partner of the same daycare, was self employed, and worked until July 2015 when she stopped because of lower back pain. The Claimant bases her disability on lower back pain that she has had for a long time.^{Footnote 2} She has limitations with prolonged sitting, standing, walking, bending and lifting.

[3] A person who applies for a CPP disability has to meet the requirements that are set out in the law. First, a person has to pay contributions into the Canada Pension Plan that meet the requirements. The legal term for this is the “minimum qualifying period.”^{Footnote 3} More specifically, the Claimant must be found disabled as defined in the CPP on or before the end of the minimum qualifying period (MQP). I find the Claimant’s MQP to be December 31, 2017.

Issues

[4] I must decide if Claimant’s conditions result in the Claimant having a severe disability, meaning incapable regularly of pursuing any substantially gainful occupation by December 31, 2017.

[5] I must decide if the Claimant’s disability is long continued and of indefinite duration.

Analysis

[6] Disability is defined as a physical or mental disability that is severe and prolonged.^{Footnote 4} A person is considered to have a severe disability if 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. A person must prove on a balance of probabilities their disability meets both parts of the test, which means if the Claimant meets only one part, the Claimant does not qualify for disability benefits.

Severe disability

[7] My decision about whether the Claimant’s disability is severe is not based on what impairments or diagnosis she has. The important thing is whether her condition prevents her from earning a living at any type of job.^{Footnote 5} The Claimant must prove she has a severe and prolonged disability.^{Footnote 6}

[8] First I have to decide if the Claimant’s disability was severe. Canada Pension says “severe” means that a claimant cannot regularly work in any “substantially gainful” job because of the disability.^{Footnote 7}

[9] I have to think about two things: How the Claimant believes her health problems affect her capacity to work. This is the Claimant’s personal evidence. What doctors and other medical professionals say about the Claimant’s conditions. This includes evidence such as what a doctor has to say about the results of the medical tests.

The Claimant was not severe by December 31, 2017

What the Claimant said about her condition

[10] The Claimant graduated with a nursing diploma in 1980 in China. She worked full time in a provincial hospital from 1980 to 2004. For about twenty years she provided nursing care to children. She moved to Canada in 2005. She studied for more than a year at a free school that was designed to help immigrants learn English and she attended full day classes. The Claimant started to look for work in 2007. She worked at a factory, printing company, and then she went to Royal College and graduated with a diploma in Early Childhood Education and achieved the 280 hour requirement to be involved in daycare. The Claimant told me at this school and some of her classes were in Chinese and some were in English. The singing, dancing and communication with children class was in English. She had to use a computer and be able to find children’s songs on a computer. The Claimant had some computer classes in English.

[11] While working as an assistant in a daycare in 2011 she was invited to be a partner. The Claimant became a partner of the same daycare, was self employed, and worked until July 2015 when she stopped because of lower back pain. She and her partner looked after six children. She told me she slipped and fell on some ice in the Spring of 2015 and hurt her back, and her back already had a long history of discomfort. She went to see her family physician Dr. Wu and also saw the orthopedic surgeon Dr. Chan.

[12] The Claimant told me that she saw Dr. Wu whenever she felt pain in her lower back. She prefers to take her Chinese herbal medicine first and if necessary see Dr. Wu. She did not see Dr. Wu very often between 2015 and 2017.  She takes over the counter Tylenol when needed. However, she tries not to take them because she does not want to take them.  She takes Chinese herbal medicines and relies on herbal medicines more than other medications.

[13] She told me she did not go to physiotherapy or massage therapy because the cost was too expensive. I accept her reason for not attending these sessions as a reasonable explanation. She does not use any walking devices but wears a back brace when she is cooking. She is able to do cooking, basic cleaning, and sometimes goes with her husband to get groceries. Her husband carries the groceries. The Claimant drives short distances. Her daily routine is that she gets up at 8:00 am and goes to bed at 10:00 pm. During the day she watches TV and reads. She can sit or stand for thirty minutes to forty minutes and then she has to change positions. She tries to exercise following a sheet of instructions. The Claimant does not know how to swim. Her questionnaire tells me she uses Lakota spray and creams on her back. Her limitations are bending at the waist and no stretching. She is able to do knee bending, and has no difficulties with concentrating or remembering. The Claimant is able to look after her own personal needs and go out. Her bowel and bladder habits are normal.^{Footnote 8}

[14] She told me there has been no improvement in her condition and she is in pain and she has had pain for a long time and feels she should qualify for a CPP disability.

The medical reports do not support the Claimant’s story

[15] Orthopedic surgeon Dr. Chan saw the claimant twice. The first time was in November 2015 and he noted there has been no significant injury to her back. The pain is mechanical in nature and she uses anti-inflammatory medication on an as needs basis. Her walking tolerance is without limitation. The Claimant classifies the problem as a nuisance but not interfering with her activities of daily living. She had physiotherapy without strengthening exercises and the response was fair. The Claimant has reasonable flexion/extension of the spine. There is no tenderness on percussion of the spine. His clinical impression is her symptoms are compatible with lumbar spondylosis. There is no corresponding clinical evidence of radiculopathy, myelopathy and spinal stenosis. She has normal leg raising on both limbs. The mainstay of treatment is conservative. She was referred for physiotherapy.

[16] Dr. Chan in March 2016 did a follow up exam. The Claimant’s symptoms mostly subsided by 80%. She did not attend physiotherapy. She walks regularly without much pain now. X-ray of the spine in flexion/extension view shows mild movement. There is no claudication nor sphincter dysfunction. We will continue with conservative approach as her symptoms have mostly subsided.

[17] Family Physician Dr. Wu in the Medical Report for CPP in December 2017 noted a diagnosis of lumbar spine degeneration. She has pain when she flexes her back to touch her knees. She uses Ibuprofen 300 mg on an as needed basis and a pain patch. His prognosis was that pain only gets better as time goes by but she may get some more stiffness. He noted that conservative treatment was recommended by Dr. Chan.

[18] In October 2017 the Claimant had an x-ray taken that showed degenerative changes at L4/L5 and L5/S1. There is no evidence of a fracture.

[19] I understand that the Claimant feels she is totally disabled and she should qualify for a disability pension. She feels she cannot work. However, neither Dr. Wu nor Dr. Chan expressed that the Claimant was not capable of working. She takes very little medication for pain. Dr. Wu noted in the December 2017 medical report that her pain may get better as time goes by but she may get more stiffness. I have no clinical office notes from Dr. Wu and the Claimant herself told me that she did not and did not seen Dr. Wu very often. She takes Ibuprofen or over the counter Tylenol but tries not to take them and prefers Chinese herbal medicine. I acknowledge the Claimant has physical problems. I find the medical evidence does not support a severe disability.

[20] The objective evidence measures how these conditions affect her, and her description of how she manages her daily life, tells me she has the capacity to work in employment that is not as demanding as looking after children. She may not be able to return to her previous job, but I find she has capacity to work at her MQP of December 2017.

[21] I acknowledge the Claimant told me she slipped on some ice in the Spring of 2015 while walking one of the children at the daycare; however in November 2015 Dr. Chan noted that the Claimant classifies the problem as a nuisance but not interfering with her activities of daily living. In March 2016 Dr. Chan noted that Claimant’s symptoms mostly subsided by 80% without attending the recommended physiotherapy. She walks regularly without much pain now. I find the medical evidence supports the Claimant was not severe on or before December 2017, and that she had a capacity to work.

[22] Where there is evidence of work capacity, a person must show that efforts at obtaining and maintaining employment have been unsuccessful because of the person’s health condition^{Footnote 9}.

[23] The Claimant told me that in the spring of 2016 or 2017 she found a job at a warehouse through a friend for about three months. She worked three to six hours per day. She cannot remember the name of the company and it has now moved. There were only three people working at the company. It was a warehouse for small automotive parts and she put small parts together and then sealed them in a bag. She did not work everyday and could go to work whenever she wanted although she was hired Monday to Friday. The Claimant told me she could sit for thirty minutes and then she would have to change her position to standing to do the work and alternate her positions. She stopped working because of lower back pain. She did not make any other applications for work.

[24] I acknowledge the Claimant told me she had a work attempt and she stopped working because of pain in her back; however, the problem is I have no clinical notes from Dr. Wu telling me that the Claimant saw Dr. Wu for pain at that time or that he recommended that she stop working. Dr. Chan in his clinical notes of March 2016 notes that the Claimant’s pain has subsided by 80 percent without having physiotherapy. She walks regularly without much pain now. I prefer the objective medical evidence because the Claimant was very vague in her description of her work attempt and it lacked details such as the name of the company that she worked for and she could not remember which months she worked there and whether it was in 2016 or 2017. The Claimant did not convince me this was a failed work attempt.

[25] I must assess the severe part of the test in a real world context.^{Footnote 10} This means that when deciding whether a person’s disability is severe, I must keep in mind factors such as age, level of education, language proficiency, and past work and life experience.

[26] I acknowledge that the Claimant was 59 years old at her date of application and date of her MQP and her age would normally be restrictive with regards to finding employment. She is well educated and worked in hospitals looking after children for twenty years after she graduated from Hebei medical university in China. Ten years ago she completed a program at Royal College for Early Childhood Education and she accomplished the 280 hours required to be involved in a daycare. She has demonstrated the ability to be re-trained and she has no memory or concentration limitations. English is not her first language; however, she took English upon arriving in Canada for one and a half years and when she was at Royal College the classes in singing and dancing were in English and she had a class in English when using computers. The Claimant may not be as comfortable with writing English; however, she has studied English. Today she owns and uses an ipad and a cell phone. She has been a hard worker and has valuable work and life experience. She has many positive qualities that outweigh her age. She has organizational skills and real world and life experience.

[27] The Claimant did not prove on a balance of probabilities^{Footnote 11} that she was incapable regularly of pursuing any substantially gainful occupation on or before her MQP. I cannot find her disability was severe.

Prolonged disability

[28] Because her disability is not severe I do not have to discuss whether it was prolonged.

Conclusion

[29] The appeal is dismissed.