Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, B. M., is eligible for a Canada Pension Plan (CPP) disability pension. Payments are to start May 2018. This decision explains why I am allowing the appeal.

Overview

[2] The Claimant was born in 1958. She finished Grade 12 and returned to school. She obtained a registered practical nursing diploma. She last worked as a nurse in January 2018. She stopped working because of severe back pain. She had spinal surgery in August 2018. She alleges that she has not been able to work at any job since she last worked in January 2018.

[3] The Claimant applied for a CPP disability pension on February 26, 2019. The Minister of Employment and Social Development Canada (the Minister) refused her application because it took the position that the while the Claimant might not be able to work as a nurse, she should still be able to perform some type or work.^{Footnote 1} The Claimant appealed to the General Division of the Social Security Tribunal.

What the Claimant must prove

[4] For the Claimant to succeed, she must prove that she has a disability that was severe and prolonged by July 31. 2018.  Under the CPP, the Claimant must be found disabled on or before the end of her Minimum Qualifying Period (MQP). The calculation of the MQP is based on the Claimant’s CPP contributions.^{Footnote 2} I find the Claimant’s MQP to be December 31, 2021. However, the Claimant began receiving a CPP retirement pension on August 1, 2018. The CPP says that claimants cannot connect a disability pension when they are receiving a retirement pension.^{Footnote 3} Claimants can request a withdrawal of a retirement pension in favour of a disability pension if they are deemed to be disabled before the retirement pension became payable.^{Footnote 4} This means that the Claimant must be found disabled within the meaning of the CPP by July 31, 2018 in order to receive a disability pension.

[5] A disability is severe if it makes a person incapable regularly of pursuing any substantially gainful occupation. It is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 5}

The reasons for my decision

[6] I find that the Claimant has a severe and prolonged disability as of January 2018. I reached this decision by considering the following issues.

Was the Claimant’s disability severe?

The Claimant has functional limitations that affect her capacity to work

[7] My decision about whether the Claimant’s disability is severe is not based on her diagnosis. It is based on whether she has functional limitations that prevent her from working.^{Footnote 6} I have to look at her overall medical condition and think about how the Claimant’s health issues might affect her ability to work.^{Footnote 7}

[8] The Claimant has to provide objective medical evidence of her disability as of July 31, 2018. If the Claimant fails to prove that she suffered from a severe disability prior to this date, medical evidence dated after is irrelevant.^{Footnote 8}

[9] The Claimant argues that her back pain results in impairments in the areas of sitting, standing, walking, lifting, reaching, bending, sleeping, dressing, driving, and performing household tasks.^{Footnote 9}

[10] The Claimant and her husband testified at the hearing. The Claimant testified that she worked in retail in sales and as a clerk. She started working as a nurse in 1998. She began experiencing back issues in 2017. She had issues at work when she would bend over and stay bent over. She told her employer about her back issues in January 2018. She was allowed time off for a few weeks, but she never returned to work.

[11] The Claimant’s family doctor suggested physiotherapy. The physiotherapist suggested that she undergo a MRI. The MRI showed severe back problems. The Claimant underwent surgery in August 2018. But she never returned to work or sought alterative work. She collects disability benefits from Manulife. There have been no discussions with Manulife about returning to work or retraining.

[12] The Claimant testified that she had problems sitting, standing, sleeping, bending, lifting, dressing, and driving in 2018. These impairments continued after her spinal surgery. The spinal surgery led to some improvement in her quality of life. She eventually no longer needed a cane to walk. But she is still left with severe impairments.

[13] The Claimant and her husband testified that she has severe impairments with her housekeeping tasks. The Claimant and her husband split the indoor housekeeping chores before the Claimant began experiencing health problems in 2017. Her husband had to complete more household chores because of her limitations. They purchased reachers and grabbers in 2018, so that the Claimant would not have to bend to pick up items. The Claimant testified that she has difficulty sustaining any type of activity for a long period. She can do the dishes or perform some type of housework for only about 15 minutes before having to take a break.

[14] The Claimant does not believe that she can work at any job. She remains in constant pain and her pain can affect her concentration. She does not believe that she can handle a driving job. She does not have experience working with computers. She does not believe that she can work from home on a computer because she has to regularly change positions from sitting to standing. She also has to take breaks after 15 minutes, which means she cannot work productively. Her pain levels are unpredictable. She does not believe that can guarantee reliable attendance at any job.

[15] The medical evidence supports the Claimant’s argument that she could not work at any job since January 2018.

[16] A MRI of the lumbar spine taken on March 13, 2018 showed mass effect on her L5 nerve root and significant scoliosis.^{Footnote 10}

[17] The Claimant saw a neurosurgeon on April 19, 2018. The neurosurgeon noted that the Claimant had experienced back pain for the past five to six months. The Claimant’s pain went into her right leg. She also experienced left knee numbness and pain in both hips. The Claimant had used a cane since January 2018. The neurosurgeon recommended that the Claimant undergo surgery.^{Footnote 11}

[18] The Claimant had her surgery on August 8, 2018. She underwent a fusion and decompression surgery to her lumbar and thoracic spine because of severe degenerative scoliosis, neurogenic claudication, spinal stenosis, and radiculopathy.^{Footnote 12}

[19] The Claimant’s neurosurgeon noted that the Claimant was doing very well in a September 24, 2018 report. But the Claimant still used a cane to walk long distances. The neurosurgeon stated that the Claimant was scoliotic before the surgery and she could hardly stand up straight. The Claimant still had difficulty walking after her surgery. The neurosurgeon recommended that the Claimant start physiotherapy and continue walking.^{Footnote 13}

[20] The neurosurgeon agreed in a November 5, 2018 report that the Claimant could not work as a nurse because of the bending and lifting involved. The Claimant still had back pain that made it difficulty to sit or stand for long. The neurosurgeon agreed that the Claimant might have to seek another job, but her inability to sit or stand for long periods would make other jobs difficult.^{Footnote 14}

[21] The Claimant’s family doctor completed a medical report for the Minister on February 14, 2019. The family doctor noted that the Claimant had difficulty with sitting, standing, carrying, lifting, and bending.^{Footnote 15}

[22] The Claimant’s nurse practitioner completed a report of the Healthcare of Ontario Pension Plan. The nurse practitioner stated that the Claimant experienced back and pelvic pain. She was of the opinion that the Claimant could not return to work at any occupation on a part-time or full-time basis.^{Footnote 16}

[23] The Minister argued that the medical evidence did not support a finding of a severe disability. The Minister argued that the neurosurgeon only ruled out a return to working as a nurse and not all types of work.^{Footnote 17} I do not take the neurosurgeons’ comments to mean that the Claimant had work capacity. The neurosurgeon pointed out in his November 5, 2018 report that the Claimant would have difficulty performing any work because of her standing and sitting difficulties.

[24] When I review the medical evidence, I find that the Claimant did not regain work capacity after going off work in January 2018. The Claimant suffered from a debilitating back condition that made it difficult for her to stand up straight and this led her to go going off work in January 2018 and her spinal surgery in August 2018. The spinal surgery improved the Claimant’s pain and quality of life somewhat, but I do not believe that she ever regained work capacity. She began seeing a nurse practitioner in 2019 and the nurse practitioner commented on her inability to work in February 2020. Even though the nurse practitioner’s report falls after the date the Claimant is supposed to be disable under the CPP, I find that the Claimant’s inability to work began in January 2018.

The Claimant does not have work capacity

[25] When I am deciding if the Claimant is able to work, I must consider more than just the Claimant’s medical conditions and their effect on functionality. I must also consider her age, level of education, language proficiency, and past work and life experience. These factors help me decide if the Claimant can work in the real world.^{Footnote 18}

[26] I find the Claimant has no capacity to work in the real world. The Claimant was 60 years old on July 31, 2018. She has post-secondary education. She worked as a nurse. She understands English. The Claimant might have transferable skills in the marketplace, but I am still satisfied that the Claimant was incapable regularly of pursuing any substantially gainful occupation by July 31, 2018.

[27] I am satisfied that the Claimant could not have handled any type of physical job by July 31, 2018 because of her difficulty with lifting and standing. I do not believe that the Claimant could have handled any type of sedentary job by July 31, 2018. I do not believe that the Claimant could have worked on a computer because of her difficulty sitting. Any type of office work at a desk would have been unrealistic option for the Claimant because of her need to frequently move from a sitting to standing position. The Claimant’s need to frequently change posture would have made her an unproductive employee. I do not believe that she could have handled a driving job because of her difficulty sitting. I accept that her activities of daily living were impaired by July 31, 2018, including her ability to complete her household chores. I accept her evidence that she could only sustain activities for about 15 minutes before having to take a break. I accept that the Claimant could not sustain activities for a long enough period to be employable in a real world context. I am also satisfied that the Claimant’s pain complaints were unpredictable to the point where she could not work on a reliable, predictable, and regular basis by July 31, 2018.

[28] I found the Claimant to be a credible witness. She had an excellent work ethic. Her Record of Earnings shows that she earned income for more than 30 years.^{Footnote 19} She worked for almost 20 years at her last job. I accept her evidence that her back condition and scoliosis was so severe that she had difficulty standing up straight by July 31, 2018. I accept her evidence that her back surgery improved her pain and her quality of life to a certain extent, but her condition never improved to the point where she regained work capacity. I find that the Claimant has not had work capacity since January 2018, when she last worked.

The Claimant has made reasonable efforts to follow recommended treatments

[29] The Claimant has followed medical advice.^{Footnote 20} She followed up with her family doctor and nurse practitioner. She had physiotherapy and chiropractic treatments. She saw a neurosurgeon and agreed to undergo spinal fusion surgery where hardware was inserted into her spine. She tried pain medications. These treatments have not improved the Claimant’s condition to the point that she can return to substantially gainful employment. She still goes to physiotherapy as needed.

Was the Claimant’s disability prolonged?

[30] The Claimant’s disability is prolonged.

[31] The Claimant’s condition began in 2017, was present when she left work in January 2018 and continues today.

[32] The Claimant’s family doctor stated that the Claimant suffers from chronic back pain. He does not expect a further recovery in the Claimant’s medical condition.^{Footnote 21}

Conclusion

[33] I am allowing this appeal. The Claimant’s disability became severe and prolonged in January 2018, when she last worked. There is a four-month waiting period before the disability pension is paid.^{Footnote 22} This means that payments start as of May 2018.

Issues in the Tribunal process

[34] The CPP changed in 2019 before the Claimant’s appeal reached the Tribunal. A new benefit was created called the Post-Retirement Disability Benefit (PRDB). The PRDB provides disability protection for CPP retirement pensioners who are disabled on or after their retirement pension start date and who have not reached age 65. In order to be eligible to receive a PRDB, claimants must be under 65 and have an MQP in January 2019 or later.^{Footnote 23} The Claimant is 62 years old and she has a December 31, 2021 MQP for the purposes of the PRDB. The Minister argued that the Claimant could not receive a PRDB because she did not have a severe and prolonged disability by December 31, 2021.^{Footnote 24}

[35] I have found that the Claimant is entitled to a CPP disability pension because she had a severe and prolonged disability before she began receiving her retirement pension. This means that I do not have to consider her eligibility for a PRDB because she is entitled to the CPP disability pension.