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Decision
[1] The Claimant is not entitled to a Canada Pension Plan (CPP) disability pension.
Overview
[2] The Claimant feels that she could no longer work as of January 2013 following a motor vehicle accident. She has chronic lower back pain, fracture of sternum with chronic pain, depression and upper limb pain. The Minister received the Claimant’s application for the disability pension on October 16, 2017. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.
[3] To qualify for a CPP disability pension, the Claimant must meet the requirements that are set out in the CPP. More specifically, the Claimant 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 Claimant’s contributions to the CPP. I find the Claimant’s MQP to be December 31, 2014.
Issue(s)
[4] Did the Claimant’s conditions result in the Claimant having a severe disability, meaning incapable regularly of pursuing any substantially gainful occupation by December 31, 2014?
[5] If so, was the Claimant’s disability also long continued and of indefinite duration by December 31, 2014?
Analysis
[6] Disability is defined as a physical or mental disability that is severe and prolongedFootnote 1. 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] The measure of whether a disability is “severe” is not whether the person suffers from severe impairments, but whether the disability prevents the person from earning a living. It is not a question of whether a person is unable to perform their regular job, but rather the person’s inability to perform any substantially gainful workFootnote 2.
[8] The Claimant testified that she was working in a packaging job at a bakery. Her duties included packing crackers into boxes and placing the boxes on a skid. This was fast-paced work. She was able to do this job until she was injured in a motor vehicle accident on January 8, 2013. She sustained injuries to her back, neck, shoulder and fracture to her chest. She was taken to the hospital, where she was prescribed medication and told to attend physiotherapy.
[9] She saw her family physician the following day. She started physiotherapy two weeks later, which she continued for 7-8 months. She also tried massage therapy. She stopped these treatments because they were not beneficial and her insurance stopped paying for them.
[10] She was referred to a pain management clinic. She was given injections in her back, neck and shoulder. She stopped doing these because they were painful and did not provide any improvement in her pain. She went back to physiotherapy. She also received three injections from Dr. Pinto with no improvement in her pain. Her family physician prescribed her pain medications, which she continues to take.
[11] In addition to her pain, she was referred to a psychiatrist due to difficulty sleeping, headaches and sadness. She began seeing Dr. Joshi in 2014. She had a little bit of improvement with medication. She sees Dr. Joshin on a monthly basis.
[12] As of December 31, 2014, she has had constant pain. She also has headaches, sadness, fatigue and nausea. She was living in a house with her son. She was not doing any housework. Her mother, sister and sister-in-law take turn helping her. She is able to drive short distances (10 km). Her sleep is fragmented.
[13] I considered all of the medical reports on file, focusing mainly on those that are dated prior to or around the time of the MQP. Dr. Wade W. Sahheed, family physician, completed the CPP Medical Report on July 17, 2017. She has chronic lower back pain, fracture of sternum now chronic pain, depression and upper limb pain, all of which came on after a motor vehicle accident. She is on Tylenol 3 and under psychiatric care. Dr. Sahhed felt that it is likely that she will not be able to enter the workforce. However, I note that this report is dated many years after the MQP.
[14] Dr. Azar Bahrami reported on September 16, 2014 that she has developed chronic myofascial pain in her left shoulder and the left side of her chest and neck since the motor vehicle accident in January 2013.
[15] Dr. Manohar Joshi, psychiatrist, reported on November 24, 2014 that she has chronic pain. No further appointment was made as it was believed that her main treatment should be for the pain.
[16] There is also a report dated April 30, 2015 from Dr. John Dudley, psychiatrist. She has diagnoses of somatic symptom disorder and adjustment disorder with mixed anxiety and depressed mood. Dr. Dudley felt that she suffers a complete inability to engage in any employment for which she is reasonably suited. He doubted that she could participate in any competitive employment successfully on a sustained basis. She continues to experience disabling levels of pain, accompanied by anxiety and depression. While his opinion is noted, I also considered that Dr. Dudley stated that she was well groomed, pleasant, and cooperative. Although she looked sad, there was no evidence of any physical distress. He noted that the range of motion in her neck and right shoulder were fairly good. Her hand grip was good. There was no muscle wasting or neurological deficits.
[17] There are a number of medical reports dated after the MQP, including a report from Dr. Harminder P.S. Bajaj, Centres for Pain Management, dated July 21, 2015 in which she was noted to complain of pain in the lower back, both legs, middle of the chest and both shoulders. She has chronic low back pain likely musculoskeletal in origin, bilateral sacroiliac joints strain, bilateral sciatica, shoulder pain likely musculoskeltal, myofascial pain and sternal pain. She was noted to have no numbness, muscle wasting, weakness or tingling in her legs. She is not taking any medications at this time other than Tylenol 3 and Advil as needed. She does not have any depression or anxiety and no psychological hang-ups.
[18] Her health appears to have worsened many years after the MQP. Dr. Michael A. Pinto, rheumatologist, reported on August 25, 2017 that she reports increasing pain in the left side of her neck, back and shoulders. Musculoskeletal examination showed tenderness.
[19] Dr. S. W. McKenzie, neurologist, reported on August 19, 2016 that she has had numbness in her right forearm and sensitivity since having blood drawn 15 months ago. It is possible that the needle stick injury affected a small sensory nerve in the forearm.
[20] Dr. Joshi reported on November 15, 2019 that she has chronic major depressive disorder and chronic pain. He was of the opinion that she is not capable of working in any kind of job and is not in a condition to be retrained for any kind of job. I note that while Dr. Joshi is very supportive of the Claimant’s application for CPP disability benefits, this report is dated almost five years after the MQP.
[21] I accept that the Claimant was having health problems that began prior to the MQP that would affect her ability to return to her physically-demanding job in packaging. However, her physical and psychological examinations prior to and around the time of the MQP did not reveal any findings that would prevent her from attempting alternate work within her limitations. I therefore find that there is evidence of work capacity.
[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 conditionFootnote 3. In this case, the Claimant tried twice to return to her regular packaging work. She did not last more than 1-2 days on either attempt due to her back pain and the fast-paced nature of the job. She was also unable to lift boxes onto the skids. Her son has helped her look for lighter packaging jobs. She has not attempted to retrain for another type of work or upgrade her language skills and education.
[23] I must assess the severe part of the test in a real world contextFootnote 4. 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. In this case, in finding that the Claimant’s disability is not severe, I considered that she was 36 years old as of the MQP with a grade 12 education obtained in India. She is able to speak a little bit of English and can read a paragraph. She cannot write in English. She has worked in Canada as a sewing machine operator and packager.
[24] Despite the Claimant’s work history and poor English language skills, she was very young as of the MQP with a good education. In considering her personal characteristics, I do not find that she was unemployable in a real world context. While I acknowledge that she would be unable to perform physically-demanding jobs, she was not precluded from attempting lighter work within her limitations. She was also not precluded from upgrading her language skills, computer skills and education. She has made very few efforts at obtaining alternate work and she has not tried to upgrade her skills. Therefore, she has not shown that her efforts at obtaining and maintaining employment have been unsuccessful because of her health condition.
[25] I must assess the Claimant’s condition in its totality, which means I must consider all of the possible impairments, not just the biggest impairments or the main impairmentFootnote 5. Having considered the totality of the evidence and the cumulative effect of the Claimant’s medical conditions, I am not satisfied on the balance of probabilities that she suffers from a severe disability.
Conclusion
[26] The appeal is dismissed.