Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not entitled to a Canada Pension Plan (“CPP”) disability pension.

Overview

[2] The Claimant is 49 years old. She was born and educated in Portugal, but came to Canada in 1987. She currently works part-time as a cleaner. She says she last worked full-time in 2009, when she was a machine operator at a factory. The Minister received her latest application for the disability pension on March 23, 2016. At that time, the Claimant said she suffered from pelvic congestion syndrome, migraines, fibromyalgia, tuberculosis, hypertension, high stress, and a back injury.^{Footnote 1} The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Tribunal.

[3] Another General Division member dismissed the Claimant’s appeal in December 2017. The Claimant then appealed to the Tribunal’s Appeal Division. In a November 2019 decision, the Appeal Division found that the General Division member made an error in law and erroneous findings of fact. The Appeal Division referred the matter back to the General Division for reconsideration. The Appeal Division also told me to make an interlocutory decision about which evidence, submissions, and decisions I could review. I issued that decision on August 20, 2020.

[4] To qualify for a CPP disability pension, the Claimant must meet the requirements set out in the CPP. More specifically, she must be found disabled (as defined in the CPP) on or before the end of the minimum qualifying period (“MQP”). The MQP calculation is based on her CPP contributions. I find the Claimant’s MQP to be December 31, 2011.

Preliminary matters

[5] There were two 2020 hearing dates: October 5 and November 10. At the start of the first 2020 hearing, the Minister’s representative suggested that the principle of res judicata barred the Claimant’s case. However, the Minister’s representative then abandoned this argument. At the same time, I made a ruling on the Minister’s updated submissions on earnings (indexed as “IS19”). Although filed only two weeks before the hearing, IS19 confirmed that the Claimant did not have any recent pensionable earnings. Given its potential relevance, the lack of prejudice, and the lack of objections, I admitted IS19 to the record.

[6] After the first 2020 hearing was underway, both parties said they would like to file more documents. They both did so before the second 2020 hearing. My November 2, 2020, letter (indexed as “IS23”) confirmed that the new documents would be admitted. At the start of the second 2020 hearing, I informed the parties that two other recently filed documents would also be admitted. Neither party objected. As a result, although they were filed after the first 2020 hearing, all documents from IS20 through IS24 are part of the record for this appeal.

Issues

[7] Has the Claimant had a severe disability since at least December 31, 2011?

[8] If so, has the Claimant’s disability also been prolonged since at least December 31, 2011?

Analysis

[9] In the CPP, “disability” is defined as a physical or mental disability that is severe and prolonged.^{Footnote 2} The Claimant has a severe disability if she is incapable regularly of pursuing any substantially gainful occupation. Her disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death. She must prove, on a balance of probabilities, that her disability meets both parts of the test. If she meets only one part, she does not qualify for disability benefits.

Has the Claimant had a severe disability since at least December 31, 2011?

[10] For the reasons set out in the following paragraphs, I find that the Claimant has not had a severe disability since at least December 31, 2011.

[11] I must assess the Claimant’s condition in its totality, which means I must consider all possible impairments, not just her biggest or main impairment.^{Footnote 3} This is important because she has identified several medical conditions. When she applied for CPP disability benefits in 2013, she mentioned migraines, fibromyalgia, and a back injury. When she applied in 2016, she mentioned all those conditions as well as hypertension, pelvic congestion syndrome, high stress, and tuberculosis.^{Footnote 4} Some, but not all, of these conditions were in the medical reports supporting her applications. In those reports, Dr. Zorzitto (Family Physician) specifically mentioned fibromyalgia, hypertension, and chronic pelvic pain.^{Footnote 5} Earlier documents also refer to depression.^{Footnote 6}

[12] I must also assess the severe part of the test in a real-world context.^{Footnote 7} This means that when deciding whether the Claimant’s disability is severe, I must consider factors such as her age, level of education, language proficiency, and past work and life experience.

[13] The Claimant was 40 years old at her MQP date. Her Portuguese education is the equivalent of Grade 8 in Canada. She has not pursued any education or language training in Canada. She speaks some English but cannot read it. She has difficulty reading in Portuguese. Portuguese interpreters were at the hearings, although the Claimant used some English words too. The Claimant worked on an assembly line for a few years in the late 1980s. Employees spoke Portuguese there, so she had no language issues. Around the same time, she worked as a cleaner at a pork factory. From 2000 to 2009, she worked as a machine operator at a factory that made plastic chair parts. While there, she also was a lead hand and did some quality control work. This workplace language was primarily English. Somebody helped her get a job there. She said one of her colleagues spoke both English and Portuguese, and would help her with language issues when necessary. Since at least 2010, she has been working as a cleaner.

[14] While the Claimant is more comfortable in Portuguese, I find that she does have some ability to communicate in English. She held a job at a primarily English-speaking workplace for nine years, albeit with some assistance. At the October 2020 hearing, she said she could understand some spoken English but could not speak it back. While the medical documents go back to at least 2006, I see little evidence that she could not communicate orally with her care providers. At the October 2020 hearing, she said she sometimes went to the doctor by herself, while at other times her husband went too. I cannot find she had a complete lack of English ability, although her weak English skills would limit the work available to her. As a result, without considering her health conditions, I find she would be capable of doing unskilled or semi-skilled work that did not require English fluency or significant literacy. This includes working as a cleaner. I will now make some observations about her evidence.

Observations about the Claimant’s evidence

[15] The Claimant was frequently unable to remember things when asked questions by the Tribunal members, although she had much less difficulty when her representative asked her. This was particularly evident for questions about her work activities and medical treatment. She could not remember if her work hours decreased before her 2009 layoff. She could not remember when she started working as a cleaner (although later in the hearing she said she started office cleaning 3-5 years ago). She could not remember how many hours she worked before or after cutting back her cleaning hours in September 2010.^{Footnote 8} She then said she had stopped working altogether, but could not remember when she started again. She couldn’t remember if she started working again in 2012, when her husband stopped working. When asked about Employment Insurance (“EI”) benefits, she did not remember if she needed to have a doctor fill out a form for those benefits. Nor did she remember if she had to look for work to get those benefits. At the 2017 hearing, the Claimant could not remember if she signed an EI form saying she was ready, willing and able to work. She found it hard to remember why she was unable to work in 2011.

[16] The Claimant’s memory issues extended to her medical treatment. She did not remember whether she did exercises recommended by Dr. Faraawi (Rheumatology) in 2006. She did not remember if she did pool therapy after March 2011. She did not remember Dr. Ahluwalia, who treated her in December 2011. She did not remember when she stopped taking medication before her February 2012 appointment with Dr. Zorzitto. She did not remember how long she saw Dr. Medeiros (Naturopath), whom she started seeing in March 2016. She did not remember if she received the physiotherapy that Dr. Spadotto (Family Physician) prescribed in October 2016. She also did not remember the outcome of her vocational rehabilitation assessment.^{Footnote 9}

[17] In contrast, at the hearings before me, the Claimant answered very specific questions from her representative about her medical condition at the end of 2011. She said she had pain all over her body. She said her pain was between 5 and 6 (on a 10-point scale, with 10 being excruciating pain) on some days, but at other times it would be between 3 and 4 out of 10. Her pelvic pain was 3 or 4 out of 10 at that time. She said she could stand for between 1 and 1½ hours, sit for 15-20 minutes, and walk at a normal pace for 10-15 minutes. She said bending, pushing, pulling, lifting and reaching caused a lot of pain. She could only do light housework at this time: her daughter would do the rest. She said she stopped attending Aquafit in 2011 because the pain would return 30 minutes after the 30-minute session. She stopped exercising then because the pain would be even worse than when she started.

[18] The Claimant could also answer questions about the end of her job in July 2009. She said she wanted to be laid off because she had very strong pain and was prescribed medication monthly. She said the side effects included dizziness, diarrhea, and stomach problems.

[19] The Claimant’s inconsistent memory on these topics makes it hard to rely on her evidence. This means documentary evidence will be especially important in determining what happened. I note she identified memory issues in both of her CPP disability applications.^{Footnote 10} However, at the 2017 hearing, she denied having memory problems.

The Claimant’s conditions around her MQP date

[20] I will look at the period after the Claimant’s layoff from the office chair factory on July 23, 2009.^{Footnote 11} I find that her employer did not lay her off because she was unable to work at that time. Instead, she likely asked her employer to lay her off, although her medical conditions may have prompted her request. I make this finding for several reasons.

[21] Firstly, and most importantly, the Claimant admitted at the 2017 hearing that she asked her employer to lay her off. Secondly, her medical care at that time makes no mention of her inability to work. The last medical evidence right before her July 23, 2009, layoff was from May 13, 2009. The evidence only referred to a numb tongue and some rectal issues. Her next appointment in August 2009 refers only to depression.^{Footnote 12} Thirdly, the Claimant’s evidence about her 2009 EI benefits has not been persuasive. At the 2017 hearing, she thought she received regular EI benefits after she was laid off, but she did not recall signing a form to that effect. At the November 2020 hearing, she could not remember if her doctor completed a form (which would suggest EI sickness benefits) or if she had to look for work to receive benefits (which would suggest regular EI benefits). This is significant because regular EI benefits require a recipient to be capable of and available for work.^{Footnote 13}

[22] Fourthly, the Claimant’s lack of recall also makes me discount her October 2020 oral evidence about the time of the layoff. At that hearing, she said she had a lot of strong pain at the time of the layoff and was getting new prescriptions from her doctor monthly. Finally, in 2010, Dr. Ballard (Physical Medicine) said she was laid off from her previous job but was looking for work.^{Footnote 14} This suggests she wasn’t laid off because she lacked work capacity.

[23] Given the above evidence, I also find it likely that the Claimant received regular EI benefits (as opposed to sickness EI benefits) after she was laid off.

[24] For the Claimant’s post-layoff conditions, I will focus on the period up to January 2014. If she was not severely disabled between her MQP date and January 2014, I do not need to continue the analysis up to the hearing date.

[25] Most of the 2010-2011 medical evidence refers to fibromyalgia. Sometimes it was diffuse pain. At other times, there were specific references to pain in her legs, shoulders, knees, neck, ankles, hands, and/or lower back. For example, her lower back pain seemed to be more of a problem in March and April of 2011.^{Footnote 15} I also saw some references to intermittent numbness and tingling in her extremities. She reported headaches in December 2010.^{Footnote 16}

[26] Although the most recent reference to rectal issues was in May 2009, the Claimant reported sharp monthly rectal pain in May 2011 that had “been going on for years.”^{Footnote 17} She mentioned “on and off” lower abdominal pain in September 2011 and January 2012 that could be intense. New abdominal pain was her only real complaint during a thorough February 2012 exam by her new family doctor.^{Footnote 18} I see no further complaints until September 2012, when she reported leg pain for the past two weeks and stress relating to family finances. This stress continued into October 2012, when pelvic pain also arose again. However, that pain seemed to be linked to sexual activity.^{Footnote 19} After that, I saw no further documents until February 2013.

[27] In February 2013, fibromyalgia was the only diagnosis given by Dr. Zorzitto for CPP purposes. The Claimant reported bilateral leg pain in early March 2013 that was likely from fibromyalgia. She had a viral infection in May 2013.^{Footnote 20} She had diffuse abdominal pain in August 2013^{Footnote 21}, followed by all-over body pain in September 2013. She had bronchitis in January 2014.^{Footnote 22}

[28] While fibromyalgia seems to be the most-cited condition between 2010 and 2014, the Claimant may have had other conditions as well. Whether she was impaired by one condition or several, the Federal Court of Appeal said the measure of whether a disability is “severe” is not whether the person suffers from severe impairments. Instead, the question is whether the disability prevents her from earning a living.^{Footnote 23} The existence of serious symptoms or even diagnoses (such as fibromyalgia, depression, or pelvic congestion syndrome) is not determinative.^{Footnote 24} The Claimant worked for nearly three years despite a provisional diagnosis of fibromyalgia in 2006.^{Footnote 25} I will now look at her work capacity around her MQP date.

The Claimant’s work capacity around her MQP date

[29] I find that the Claimant has had some work capacity since July 2009. I make this finding mainly because of the many objective references to cleaning work since then. I also considered her receipt of regular EI benefits starting in July 2009. The Federal Court of Appeal has said that the performance of part-time work shows work capacity.^{Footnote 26} The medical documents alone refer to ongoing cleaning work in September 2010, April 2011, May 2011, March 2013 (when she was “working more lately”), September 2013, July 2015, June 2017, and November 2017.^{Footnote 27} Another medical document says she was looking for work in October 2010.^{Footnote 28} She admits some work: at the November 2020 hearing, she admitted working as an office cleaner for the past 3-5 years. In her March 2016 questionnaire, she admitted working part-time for four hours per month.^{Footnote 29}

[30] The finding of work capacity since July 2009 is very important. Where there is evidence of work capacity, an applicant must show that efforts at obtaining and maintaining employment have been unsuccessful because of her health condition.^{Footnote 30} The Claimant does not appear to meet this requirement. She admits that she has worked since at least 2016. At the hearing, she said she had been cleaning offices for “3-5 years”. However, the objective medical documents point to work activity since at least September 2010. As noted, I prefer the objective evidence.

[31] My finding about work capacity limits the Claimant’s prospects for proving a severe disability. She could still establish a severe disability by showing that her work capacity since December 2011 fell short of the “substantially gainful” level. She could also show that she was incapable regularly of pursuing a substantially gainful occupation, even if she was capable of such work from time to time.

Was the Claimant’s work capacity substantially gainful?

[32] Since June 2014, the CPP Regulations have defined a “substantially gainful occupation”. It is an occupation that gives a salary or wages of at least the maximum annual amount of a CPP disability pension.^{Footnote 31} This has increased from $14,836.20 in 2014 to $16,651.92 in 2020.

[33] Before 2014, the term “substantially gainful” was extensively debated at the Pension Appeals Board.^{Footnote 32} Nonetheless, in 2013, the Federal Court of Appeal accepted that capacity for part-time work could prevent a finding of severity.^{Footnote 33} In 2011, that same court upheld a decision denying disability benefits to an applicant who earned some income babysitting children at her home.^{Footnote 34} In 2018, it upheld an earlier decision denying disability benefits to an applicant who could work but only at reduced hours.^{Footnote 35}

[34] For CPP purposes, the Claimant has had no reported earnings since 2009.^{Footnote 36} However, this does not mean that she was not working. I have already found that she has worked since 2010. She admits current earnings of $300.00 per month. While she says she only works four hours per month, she also says that her husband works with her. For each of them, this yields a $37.50 hourly wage and an annual income of $1,800.00. Even if I attribute all that income to her, it would be far below the substantially gainful level. The Claimant also admitted an annual income of $2,700.00 in her 2016 CPP questionnaire, and gave the same four hours/month figure.

[35] The problem is that I do not find the Claimant’s work evidence reliable. In her January 2013 questionnaire, she denied doing any other work in addition to her main job (which ended in 2009) during the past two years. More importantly, she also denied doing any other type of work in the past five years.^{Footnote 37} This directly contradicts multiple references in the medical documents to working as a cleaner. I also note that she was cleaning houses in September 2013.^{Footnote 38} This is not the same as office cleaning. At the hearing, she said she only did office cleaning after 2010. Ultimately, I prefer the medical documents to the Claimant’s evidence: multiple medical professionals would have no reason to fabricate her work activity. The result is that I cannot rely on the Claimant’s evidence about her work or her work capacity since July 2010.

[36] As I cannot rely on the Claimant’s evidence, I must base my findings on the objective evidence. Her record of earnings contradicts her own evidence of working since at least 2016, and the objective evidence of work since 2010. This leaves the medical documents as the only potentially reliable evidence about whether her work capacity was substantially gainful (and/or was not regular). While the medical evidence was prepared for medical rather than work reasons, I must deal with the evidence that is before me. I cannot compel the parties to file documents, nor is it my role to gather evidence on behalf of the parties. In addition, the hearing was also already adjourned once, partly because both sides wished to produce more documents.^{Footnote 39}

[37] I will approach this chronologically, for the key period from July 2010 to January 2014. This period straddles the Claimant’s MQP date.

[38] In September 2010, the Claimant had trouble getting out of bed in the morning. She still did cleaning work, but cut back due to constant pain. This likely means she worked as much as her conditions allowed. However, Dr. Parlea (Family Physician) also said she found it “difficult to lift a broom some days.”^{Footnote 40} This strongly suggests she was working more than she admits working now. She may even have been working daily, even if it wasn’t full-time. She may have been capable of substantially gainful work at this time: the October 2010 report that she was “currently looking for work” supports this, even though she also said most activities made her pain worse.^{Footnote 41}

[39] The Claimant’s symptoms over the next several months were consistent with a primary diagnosis of fibromyalgia, although she also reported other symptoms from time to time.^{Footnote 42} Around January 2011, her numbness and tingling sometimes made her drop things. In March 2011, bending made her lower back pain worse.^{Footnote 43}

[40] In April 2011, the Claimant again found it hard to get out of bed sometimes, and she was not sleeping well. However, she told Dr. Parlea she was “still pushing herself to go working.”^{Footnote 44} Once again, this suggests she worked regularly and as much as her health permitted. She underwent a medical procedure in May 2011. From May 2011 to September 2011, her treatment focus was abdominal pain.^{Footnote 45} This pain may be linked to her pelvic congestion syndrome. These documents make no reference to working.

[41] The next documents are from December 2011. The Claimant told Dr. Ahluwalia she was laid off in July 2009 but “has not been back to work since then.” I see no mention of her cleaning work, which clearly continued after July 2009. However, medication had improved her sleep.^{Footnote 46} The Claimant didn’t mention work to Dr. Parlea either, although she said she was “trying to stay active.” Nor did imaging from December 2011 mention work.^{Footnote 47} As a result, it is hard to say if she was working in December 2011.

[42] In February 2012, the Claimant was thoroughly examined by her new family doctor. Her doctor had “no concerns” about her overall wellbeing, and a general physical exam led to a comment of “appears well.” There were no musculoskeletal concerns. She was not taking any medications, despite reporting benefit from them in December 2011. Her doctor described her as a “well woman” whose only complaint was on-and-off abdominal pain over the past week with an unknown cause.^{Footnote 48} This suggests very few limitations on her capacity to pursue a substantially gainful occupation.

[43] Documents from March 2012 to June 2012 do not reveal anything about work or work capacity. In September 2012, the Claimant said walking increased her leg pain; she also had trouble sleeping because of pain, financial stress, and low mood.^{Footnote 49} She still had stress in October 2012 because her husband was still not working. I see no further medical documents until February 25, 2013. At that time, Dr. Zorzitto said she could not do repetitive physical tasks due to pain. She was also tired, and was tender at her pressure points. I see no reference to working.^{Footnote 50}

[44] However, only 11 days later (March 8, 2013), the Claimant told Dr. Zorzitto that her bilateral leg pain was “worse by the end of the day,” as she was “working more lately to make more money”. Her husband was still not working. Dr. Zorzitto thought work was probably worsening or causing a flare-up of her fibromyalgia. Dr. Zorzitto advised her to work fewer hours, but the Claimant said she still needed to work for financial reasons.^{Footnote 51} The financial need comment strongly suggests the Claimant was doing more than just casual work. That conclusion is supported by the Claimant “working more lately” and her statement that her pain was “worse by the end of the day.” The reference to “working more lately” also suggests the Claimant had been working for some time, although not as much as currently. All this is consistent with substantially gainful work at this time.

[45] In May 2013, the Claimant told Dr. Zorzitto of various symptoms (including pain and vomiting) over the past two days. However, this appeared to be a viral infection.^{Footnote 52} There were some essentially normal tests in August 2013^{Footnote 53}, followed by a September 2013 appointment for “all over” body pain. At that time, Dr. Zorzitto affirmed the fibromyalgia diagnosis. However, Dr. Zorzitto also said the Claimant “works as cleaner of houses” and “while working, things feel OK.” She had increased pain after work and found it hard to get going “after she sits down after work.” She also had trouble sleeping because of pain. This points to substantially gainful work during the day. I see little other evidence of non-transitory limitations through January 2014.^{Footnote 54}

[46] Overall, while the Claimant had some functional limitations around her MQP date, they were often intermittent and I see relatively little evidence that they interfered substantially with her regular activities. This was especially true between mid-2011 and February 2013. Many of her complaints only emerged shortly before her appointments. Her limitations intensified around February and March 2013, and she had trouble after work ended for the day in September 2013. Between July 2010 and January 2014, I conclude she either had capacity for substantially gainful work, or she failed to prove (on a balance of probabilities) that she lacked such capacity. While I don’t think she could have worked full-time during this period, such capacity is not required.

[47] The Claimant could establish a severe disability by showing that her work capacity since December 2011 was not at the “substantially gainful” level. In my view, there is not enough reliable evidence to support that finding. The onus is on the Claimant to prove her case. I find she has not done so from her MQP date to at least January 2014. Similarly, I find she had a significant post-MQP period when any incapacity was not regular.^{Footnote 55} In particular, the evidence discloses a lengthy period between mid-2011 and early 2013 where her functional limitations were minimal. These findings mean that her appeal cannot succeed.

Has the Claimant’s disability also been prolonged since at least December 31, 2011?

[48] The Claimant has not been severely disabled since at least December 31, 2011. This means I do not need to answer this question.

Conclusion

[49] The appeal is dismissed.