Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed. The General Division committed an error by discarding all of the Claimant’s testimony for no good reason. I am overturning the General Division’s decision and substituting it with my own decision to grant the Claimant a disability pension.

Overview

[2] The Claimant is a 49-year-old Portuguese immigrant who used to work in a factory. She was laid off from her job in 2009 after developing widespread joint pain. Since then, she has worked periodically as a cleaner.

[3] The Claimant first applied for Canada Pension Plan (CPP) disability benefits in 2013, claiming that she could no longer work because of fibromyalgia, migraine headaches, and back pain. She cited those conditions when she applied again in 2016, along with hypertension, pelvic congestion syndrome, stress, and tuberculosis.

[4] The Minister refused both applications. In its view, the Claimant had not shown that she had a severe and prolonged disability on December 31, 2011, the last time she had CPP disability coverage.^{Footnote 1}

[5] The Claimant appealed the Minister’s most recent refusal to the General Division of the Social Security Tribunal. The General Division dismissed her appeal in December 2017, but that dismissal was later overturned by one of my colleagues on the Appeal Division. The General Division reconsidered the appeal and, following two hearings by teleconference in October and November last year, it again turned down the Claimant. In a decision dated December 21, 2020, the General Division found insufficient evidence that the Claimant was disabled as of December 31, 2009. In particular, the General Division found the Claimant’s testimony unreliable, and it saw indications in her medical file that she had been able to do substantially gainful work after her coverage period.

[6] On March 28, 2021, the Claimant’s lawyer, Stephen Yormak, asked the Tribunal’s Appeal Division for leave, or permission, to appeal. Mr. Yormak alleged that the General Division made various errors^{Footnote 2} in coming to its decision, among them:

• The General Division penalized the Claimant for being unable to recall details, some of them trivial, from more than 10 years ago;
• The General Division did not take a fact-finding approach when questioning the Claimant but instead engaged in a “gotcha” investigatory exercise;
• The General Division found that the Claimant had the capacity to perform a substantially gainful occupation even though her record of earnings showed little or no income after 2009;
• The General Division wrongly inferred capacity from the Claimant’s attempts to engage in part-time work;
• The General Division exaggerated the Claimant’s ability to communicate in English, which she maintains is extremely limited;
• The General Division unfairly drew a negative inference from the fact that the Claimant asked her boss to lay her off from her factory job, ignoring the larger point that her chronic pain had led to make the request;
• The General Division misdirected itself^{Footnote 3} by denying any link between the seriousness of the Claimant’s medical conditions and her capacity to earn a living; and
• The General Division engaged in speculation and other leaps of logic by reading capacity into various off-handed comments by the Claimant’s treatment providers.

[7] I allowed the Claimant’s appeal to proceed because I thought Mr. Yormak had raised an arguable case. Last month, I held a hearing to discuss his allegations in full.

[8] I have now concluded that the General Division committed two errors in arriving at its decision. In my view, the appropriate remedy in this case is to make my own assessment of the Claimant’s disability claim and give the decision that the General Division should have given. As a result, I am overturning the General Division’s findings and substituting them with my own decision to grant the Claimant a CPP disability pension.

Preliminary matter

[9] On May 19, 2021, the Minister applied to the Federal Court for judicial review of my April 19, 2021, decision granting the Claimant leave to appeal. I saw no reason to delay or suspend this proceeding pending completion of the judicial review and, on June 22, 2021, I convened a hearing on the merits by teleconference. The Claimant and her lawyer joined the teleconference, but the Minister’s representative did not. Having satisfied myself that the Minister was given proper notice of the hearing, I decided to proceed. The next day, the Tribunal notified the Minister that the hearing had taken place.^{Footnote 4}

[10] On July 15, 2021, the Minister sent the Tribunal a letter saying that it had understood that proceedings would be suspended pending the outcome of Federal Court’s judicial review. For the first time, it asked the Appeal Division to put this matter on hold.

[11] I have considered the Minister’s request, but I don’t see anything to change my position.

[12] The Minister knew, or should have known, that a hearing was coming. It did not ask for proceedings to be suspended until well after the hearing date had come and gone. It did not explain why it felt a delay was necessary under the circumstances.

[13] The Tribunal issued a notice of hearing on April 20, 2021 and never took any action to vary or cancel it. It is not clear to me why the Minister assumed that proceedings would be automatically suspended simply because it had gone to the Federal Court. It is true that the Appeal Division has previously suspended proceedings when a party applied for judicial review of one of its leave to appeal decisions. In such cases, the Tribunal has notified the parties of a suspension. On this occasion, the absence of such a notification should have alerted the Minister that the matter was going ahead.

[14] Moreover, I don’t see how pushing on with this appeal damages the Minister’s interests. If I proceed and then dismiss the Claimant’s appeal on its merits, the Minister’s attempt to invalidate my leave to appeal decision will be moot.^{Footnote 5} On the other hand, if I proceed and then allow the Claimant’s appeal, the Minister’s attempt to invalidate my leave to appeal decision will ultimately be no worse off than if I suspend proceedings. Under both scenarios, the Claimant benefits because she doesn’t have to wait a year or so for the Federal Court to do its work, and she gets a result from the Appeal Division sooner rather than later.

[15] Furthermore, if the Minister ultimately succeeds at the Federal Court, then my decision granting leave to appeal will be quashed, but then so will this decision on the merits. But if the Minister fails at the Federal Court, then it remains free to challenge the outcome of this decision.

[16] At the hearing, I discussed the pros and cons of proceeding with Mr. Yormak. From his client’s perspective, the main downside to proceeding was the risk that a hearing on the merits might be for nothing if the Federal Court later quashed my leave to appeal decision. Understanding that risk, he nevertheless decided to proceed.

[17] It should be kept in mind that nothing in the law requires the Appeal Division to suspend or delay a proceeding if a party applies for judicial review of one its decisions. The Social Security Regulations (SSTR) say only that a party “may request that a hearing be adjourned or postponed by filing a request, with supporting reasons, with the Tribunal [emphasis added].”^{Footnote 6} This language suggests that the burden of proof lies with the party asking for an adjournment or postponement. It also suggests that the Tribunal’s decision to adjourn or postpone is discretionary.

[18] There is also the broad mandate in the SSTR for the Tribunal to conduct proceedings “as quickly and informally as the circumstances and considerations of fairness and natural justice permit.”^{Footnote 7} Elsewhere, the SSTR repeatedly requires the Appeal Division to make its decisions “without delay.”^{Footnote 8}

Issue

[19] There are only three grounds of appeal to the Appeal Division. A claimant must show that the General Division

1. (i) did not follow procedural fairness;
2. (ii) made an error of law; or
3. (iii) based its decision on an important factual error. ^{Footnote 9}

[20] My job was to determine whether any of Mr. Yormak’s allegations fell into one or more of the permitted grounds of appeal and, if so, whether any of them had merit.

Analysis

[21] Having considered its decision, I am satisfied that the General Division committed an error by discounting the entirety of the Claimant’s oral evidence, including her reasons for leaving her last job. Because the General Division’s decision falls for these reasons alone, I see no need to consider her lawyer’s remaining allegations.

The General Division failed to consider obvious reasons for gaps in the Claimant’s testimony

[22] Throughout its decision, the General Division methodically discounted the Claimant’s oral evidence.^{Footnote 10} It did so because it found her memory unreliable and “inconsistent.” In my view, the General Division erred by failing to take into account obvious reasons for such inconsistencies.

[23] In its decision, the General Division listed numerous instances—in both her December 2017 and October/November 2020 General Division hearings—where the Claimant could not remember details about her work activities and medical treatment. For example:

• Whether her work hours decreased before her 2009 layoff;
• How many hours she worked before and after cutting back her cleaning hours in September 2010;
• Whether she started working again in 2012, when her husband stopped working;
• Whether she had  a doctor fill out a form for Employment Insurance (“EI”) benefits in 2009;
• Whether she signed an EI form saying she was ready, willing and able to work;
• Whether she had to look for work to get those benefits;
• Whether she did exercises recommended by Dr. Faraawi in 2006;
• Whether she did pool therapy after March 2011;
• Whether she saw Dr. Ahluwalia, who treated her in December 2011;
• When she stopped taking medication before her February 2012 appointment with Dr. Zorzitto;
• How long she saw her naturopath, Dr. Medeiros;
• Whether she received the physiotherapy that Dr. Spadotto prescribed in October 2016; and
• What her vocational rehabilitation assessment concluded.

[24] Mr. Yormak described this list as a “compendium of trivial lapses.” He accused the General Division of “nitpicking.” He said it was ludicrous to expect anyone to recall details from events that happened more than a decade ago. He argued that it was unfair for the General Division to throw out an entire category of evidence simply because the Claimant lacked near-perfect recall.

[25] All these might be valid points, but they did not go to the applicable test. As I reminded Mr. Yormak at the hearing, he had to show, not that the General Division acted unfairly or unreasonably, but that it committed an error under one or more of the three permissible grounds of appeal.

[26] However, I do think the General Division crossed the line into error when it assessed the Claimant’s overall credibility. It was one thing to note that the Claimant had a poor memory; it was another to suggest that her memory was selective. At various points, the General Division clearly insinuated that the Claimant was intentionally attempting to mislead it:

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.^{Footnote 11}

[…]

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.^{Footnote 12}

[…]

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. However, at the 2017 hearing, she denied having memory problems.^{Footnote 13}

[27] The General Division seemed to find it puzzling, even suspicious, that the Claimant could remember some things but not others. I don’t see it that way. To be sure, it is undoubtedly frustrating when a witness can’t recall specifics under questioning, but is that a good reason to discard all of their testimony? In my view, such a drastic measure might be justified only if the decision-maker were satisfied that the witness was lying or otherwise completely non-credible. In this case, the General Division did not explicitly make such a finding and, even if it had, there was nothing on the record that would have justified it.

[28] Indeed, there were two good and quite obvious reasons for the Claimant’s inconsistent memory, and neither of them had anything to do with her attempting to deceive the General Division. First, there is the fact that the Claimant has been diagnosed with fibromyalgia, a condition that is associated with memory impairment and loss of focus. The General Division made no allowance for the Claimant’s condition when it assessed her credibility. In effect, it penalized her for the very thing on which she was basing her claim.

[29] Second, there is the fact that the Claimant now has a lawyer who, as lawyers do, prepared her for testimony. As Mr. Yormak pointed out, the Claimant was not represented at her first General Division hearing, but she was at her second. So it is not surprising that, in October and November 2020, the Claimant was primed to discuss topics that were likely to help her case in a way that she was not in December 2017. It is likewise not surprising that she was relatively ill-prepared to respond to pointed questions from the General Division that neither she nor her lawyer had anticipated.

[30] The General Division based its decision on an erroneous finding about the Claimant’s credibility—one that it made without regard for (i) the impact of her medical condition on her memory and (ii) the reality that lawyers can’t be expected to prepare their clients for all potential questions.

The General Division mischaracterized the Claimant’s reasons for leaving her factory job

[31] In rejecting her claim, the General Division placed a great deal of importance on the circumstances that led the Claimant to leave her last regular job in July 2009. I found the General Division’s discussion of those circumstances to be confusing and contradictory. In its decision, the General Division wrote:

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.^{Footnote 14}

[32] Here, the General Division seems to be basing its decision on a distinction without a difference. If you are in pain and no longer feel able to work, does it really matter whether you quit your job or asked your boss to lay you off? Despite this, the General Division makes much of the Claimant’s “admission” that she initiated her termination.^{Footnote 15}

[33] The Claimant has never attempted to hide the fact that she asked her boss to let her go, but she has always maintained that her sole motivation in doing so was her medical condition. On that second point, the General Division did not believe her. It did not believe her for the same reason that it rejected all of her testimony: “[T]he Claimant’s lack of recall also makes me discount her October 2020 oral evidence about the time of the layoff.” I have already determined that the General Division erred in discounting all of the Claimant’s oral evidence for no good reason.

[34] The General Division also did not believe the Claimant because her medical records at the time of the layoff made 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 16} This account is, strictly speaking, accurate, but it leaves something out: the Claimant’s family doctor also mentioned fibromyalgia in the two clinical notes prior to those cited by the General Division, and she also noted that the Claimant was complaining of “increased back and shoulder pain and diffuse myalgia” in March 2009.^{Footnote 17}

[35] In short, there was nothing in the record to suggest the Claimant left her factory job for anything other than her health condition. I have concluded that the General Division based its decision on a false impression of why the Claimant’s last regular employment came to an end.

Remedy

There are three possible ways to fix the General Division’s errors

[36] The Appeal Division has the authority to address whatever errors that the General Division may have committed. I have the power to:

• confirm, rescind, or vary the General Division’s decision;
• refer the case back to the General Division for reconsideration; or
• give the decision that the General Division should have given.^{Footnote 18}  

I also have the power to decide any question of fact or law necessary to carry out the above remedies.^{Footnote 19}

[37] The Tribunal is required to conduct proceedings as quickly as the circumstances and the considerations of fairness and natural justice allow. In addition, the Federal Court of Appeal has stated that a decision-maker should consider the delay in bringing an application for a disability pension to conclusion. It has been more than five years since the Claimant applied for the disability pension. If this matter were returned to the General Division, it would only delay final resolution of a proceeding that has been going on too long.

[38] At the hearing, the Claimant and her lawyer indicated that, in the event I found an error, they were content to have me substitute my decision for the General Division’s.

The record is complete enough to decide this case on its merits

[39] I am satisfied that the record before me is complete. The Claimant has filed numerous medical reports with the Tribunal, and I have considerable information about her employment and earnings history. I have access to recordings of two lengthy oral hearings,^{Footnote 20} in which different General Division members questioned the Claimant about her medical condition and its effect on her work capacity. I doubt that the Claimant’s evidence would be materially different if this matter were reheard.

[40] As a result, I am in a position to assess the evidence that was on the record before the General Division and to give the decision that it should have given, had it not erred. In my view, if the General Division had properly assessed the Claimant’s oral evidence, the result would have been different. My own assessment of the record satisfies me that the Claimant is entitled to a CPP disability pension.

The medical evidence suggests the Claimant has a severe disability

[41] Having reviewed the record, I find the Claimant disabled.

[42] To be found disabled, a claimant must prove, on a balance of probabilities, that they had a severe and prolonged disability at or before the end of the MQP. A disability is severe if a person is “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.”^{Footnote 21}

The Claimant’s physical impairments rule out all forms of work

[43] The Claimant has a long history of widespread body pain and other ailments. The available medical evidence indicates that the Claimant was diagnosed with fibromyalgia as early as 2006.^{Footnote 22}

[44] I reviewed office notes from Dr. Parlea, the family physician who treated the Claimant in the most relevant period between 2008 and 2012.^{Footnote 23} The notes, which were prepared well before the Claimant submitted a disability claim, disclose a litany of complaints and reported symptoms, both during and after the MQP, including fatigue, headaches, abdominal discomfort, rectal bleeding, and back, shoulder, arm, knee, and ankle pain. Dr. Parlea diagnosed the Claimant with fibromyalgia, depression, acute gastritis and at various times prescribed her with Lyrica, Ciprolex, Amitrytiline, Flexeril, and Cymbalta.

[45] In September 2010, Dr. Parlea noted that the Claimant found it “difficult to get out of bed in the mornings, difficult to lift a broom some days… Doing cleaning work but cut back due to constant pain.”^{Footnote 24} The General Division took this as evidence that the Claimant had capacity toward the end of her MQP, but I take the precise opposite view: the note shows, not so much that the Claimant was active, but that she was attempting to stay active—and failing to do so. Dr. Parlea’s final office note—dated just 11 days before the end of the MQP—again documented the Claimant’s widespread pain and reiterated the fibromyalgia diagnosis.

[46] Dr. Zorzitto took over as the Claimant’s primary treatment provider in early 2012. Her office notes over the next six years similarly document frequent visits, in which the Claimant continued to report variety of symptoms, including pelvic pain, joint pain, and depression and anxiety.^{Footnote 25} Dr. Zorzitto repeated affirmed the Claimant’s fibromyalgia and also diagnosed her with irritable bowel syndrome.

[47] The General Division placed particular emphasis on Dr. Zorzitto’s initial examination of the Claimant in February 2012.^{Footnote 26} Noting that the family physician described the Claimant as a “well woman,” the General Division concluded that she had few limitations on her capacity to pursue a substantially gainful occupation not long after the MQP. Here is another point on which I differ with the General Division. My review of Dr. Zorzitto’s note strongly suggests to me that it referred to a well-known suite of tests and assessments known as the “Well Woman Examination.” I suspect that Dr. Zorzitto was not necessarily saying that the Claimant was “well” but that she had conducted breast and pelvic examinations and had taken a Pap smear.

[48] It is true that Dr. Zorzitto, in that initial February 2012 examination, had “no concerns” with the Claimant’s overall well being and mental health and said that she “appeared well.” However, I would emphasize that this was Dr. Zorzitto’s first encounter with the Claimant. In subsequent visits, Dr. Zorzitto noted that the Claimant

• reported daily episodes of recurrent sharp abdominal pain;
• complained of leg pain, increased by walking;^{Footnote 27}
• had trouble sleeping because of pain, financial stress, and low mood;^{Footnote 28}
• expressed concern for “all over” body pain.^{Footnote 29}

[49] Dr. Zorzitto, also completed the medical questionnaires that accompanied the Claimant’s two applications for CPP disability benefits. Both listed fibromyalgia as the Claimant’s main diagnoses. The first, from February 2013, said that the Claimant was unable to do repetitive physical tasks due to pain and excessive tiredness.^{Footnote 30} The second, from March 2016, said that the Claimant’s fibromyalgia was unlikely to improve.^{Footnote 31}

[50] The fibromyalgia diagnosis has been confirmed by two specialists. In October 2012, Dr. Ballard, a specialist in physical medicine, said that the Claimant met all the diagnostic criteria consistent with fibromyalgia.^{Footnote 32} In December 2011, Dr. Ahluwalia agreed that the Claimant had fibromyalgia and advised her to stop taking anti-inflammatories, which he said were generally ineffective for her condition. He, like Dr. Ballard, prescribed Lyrica and recommended regular exercise.^{Footnote 33}

[51] The medical evidence shows that the Claimant’s treatment providers took her complaints seriously and wee united in agreement that their patient had fibromyalgia. Of course, a diagnosis is not by itself proof of disability. For information about the Claimant’s functional limitation, we must look at other evidence, including the Claimant’s testimony.

A claimant’s word is sometimes the main evidence for chronic pain

[52] The courts have recognized that chronic pain syndrome and fibromyalgia are genuine conditions whose existence and severity may not be supported by objective findings. In a case called Martin,^{Footnote 34} the Supreme Court of Canada ruled that chronic pain syndrome and related conditions can be genuinely disabling and, as such, found that its blanket exclusion from the Nova Scotia workers’ compensation scheme infringed the claimant’s equality rights under the Canadian Charter of Rights and Freedoms. It is true that Martin contains no specifics on the question of how evidence of chronic pain is to be evaluated in assessing disability and, in particular, it is silent on the question of the extent, if any, to which subjective evidence must be considered by the trier of fact. However, it seems reasonable to argue that a condition whose defining feature is how its sufferers perceive pain should be assessed, at least in part, by considering their subjective evidence of its intensity and its debilitating effects. If so, then the issue of a claimant’s credibility must take on heightened importance.

The Claimant’s testimony was credible and persuasive

[53] Unlike the General Division, I did not completely discount the Claimant’s testimony. I have listened to the recording of the General Division hearing. It is true that the Claimant had a poor memory for details. It is also true that, on some points, what she said at the hearing did not precisely correspond with some of the histories in her medical records. However, I found these lapses understandable in some cases, insignificant in others.

[54] As noted earlier, the Claimant could not remember details such as: whether she was working reduced hours prior to her July 2009 lay-off; when she started and stopped working as a cleaner; whether she had checked a box in her EI forms saying that she was willing, ready and able to work”; and what medications he was taking and when. I don’t find any or all of these failings fatal to the Claimant’s case. The events in question occurred more than a decade ago. The Claimant speaks and understands very little English. Many of her interactions with the world of work and medicine would necessarily have been mediated through third parties.

[55] The General Division made much of the fact that several of the Claimant’s medical reports suggested that she was working as a part-time cleaner after the MQP.^{Footnote 35} What the General Division did not say was that many of these reports also said that she was pushing herself to work through pain. Moreover, the Claimant has never denied “working” after the MQP. However, she has consistently said that such work was part-time, irregular, and insubstantial. In her March 2016 questionnaire, she admitted to working two days per month, four hours in total for an approximate annual income of $2,700.^{Footnote 36} In her December 2017 General Division hearing, she said something similar. She testified that, for the previous three to five years, she and her husband had been making $300 per month taking occasional cleaning jobs.

[56] This account was consistent with her record of earnings, which showed no reported income after 2009.^{Footnote 37} As the General Division noted, that does not mean the Claimant was not working. But it does not mean she was making significant earnings either. The General Division gave no weight to the Claimant’s insistence that she was not making anything close to a substantially gainful income as a cleaner, focusing instead on references in medical file to references to the Claimant’s “work.” Although it did not say so explicitly, the General Division seemed to be suggesting that the Claimant was lying and had in fact been making significant sums for cash under the table.

[57] Unlike the General Division, I did not see a contradiction between what the Claimant told her doctors and what she told the General Division. The Claimant was described as a “cleaner” in several reports.^{Footnote 38} According to Dr. Parlea, the Claimant was “pushing herself to go working”^{Footnote 39} but found it “difficult to lift a broom.”^{Footnote 40} Dr. Zorzitto wrote that the Claimant felt “OK” while working but experienced “significant pain” afterward.^{Footnote 41} In my view, none of this was necessarily inconsistent with the Claimant’s story that she was able to take the odd cleaning job, but only for a little money and only with her husband’s help. It is possible to regard oneself as a cleaner without actually having the capacity to do much cleaning.

[58] For my part, I found the Claimant a credible and sympathetic witness. She described how she feels constant whole body pain, whose intensity she rated as a five or six out of 10.^{Footnote 42} She said that the pain was aggravated by any kind of strenuous activity^{Footnote 43} and that it flared up several times per day.^{Footnote 44} I am satisfied that these symptoms prevent her from delivering the kind of regular, consistent performance that employers demand.

[59] The Claimant’s credibility is reinforced by her work history, which shows a more than a decade of substantially gainful earnings in several jobs going back to the late 1980s.^{Footnote 45} The evidence indicates that the Claimant was a viable participant in the labour market until increasing chronic pain robbed her of the ability to regularly perform physical work. One can reasonably assume that a person with the Claimant’s employment record would not have given up on employment unless there was some genuine underlying cause.

The Claimant lacks capacity when viewed as a whole person

[60] The leading case on the interpretation of “severe” is Villani,^{Footnote 46} which requires the Tribunal, when assessing disability, to consider a disability Claimant as a “whole person” in a real-world context. Employability is not to be assessed in the abstract, but rather in light of “all of the circumstances.” Those circumstances fall into two categories:

• The claimant’s background — matters such as “age, education level, language proficiency and past work and life experience” are relevant;
• The claimant’s medical condition — this is a broad inquiry, requiring that the claimant’s condition be assessed in its totality.

[61] I don’t think the Claimant has anything left to offer a real-world employer. She came to Canada at age 16 and has at best a limited grasp of spoken English. She can’t read or write it either, other than a few words.^{Footnote 47} She has the equivalent of a Grade Eight education and, aside from intermittent jobs as a cleaner, she has only worked in factories. Whatever skills she has acquired along the way are no use if she is unable work at a desk or counter. It is true that the Claimant was relatively young—40 years old—when she last qualified for benefits, but she was retrainable only in the most theoretical sense of the word. I cannot see how the Claimant could have succeeded in the competitive labour market with her physical impairments.

The Claimant did not have sufficient capacity to pursue alternative employment

[62] I am certain that the Claimant is incapable of returning to factory work or any kind of regular job that has a significant physical component. The question is whether she remained capable of light or sedentary work as of December 31, 2011.

[63] The Claimant is in constant pain that frequently flares up. She has been advised to avoid any activity that involves repetitive motions. She cannot offer regular of reliable performance. She has difficulty communicating in English and has no marketable skills. Given these factors, I find that the Claimant is effectively unemployable.

[64] A case called Inclima^{Footnote 48}requires disability claimants with at least some work capacity to show that they have made reasonable efforts to obtain and secure employment and that those efforts have been unsuccessful because of their health condition. I find that the Claimant lacks any capacity to make such efforts. True, the Claimant continues to take periodic cleaning jobs, but they fall well short of a substantially gainful occupation. Her medical conditions, combined with her background and personal characteristics, rule out all forms of non-physical work. For that reason, I will not draw a negative inference from the fact that The Claimant has never launched a job search or investigated retraining programs. She has a genuine belief that these things are beyond her, and the evidence bears that out.

The Claimant has taken reasonable steps to get better

[65] Chronic pain is difficult to treat. The record indicates that the Claimant has generally done everything her treatment providers have asked, although to little effect. She has accepted referrals to various specialists, including a rheumatologist, a physiatrist, and a neurologist. She has attempted different exercise regimens, including enrollment in aquafitness classes. She has tried various painkillers and antidepressants, although she stopped them when she experienced side effects or failed to see positive results. 

The Claimant has a prolonged disability

[66] The Claimant’s testimony, corroborated by the medical reports, indicates that she has suffered from chronic pain since 2006 or earlier. She has been effectively unemployable since then. It is difficult to see how her health will significantly improve, even with new medications or alternative therapies. In my view, these factors qualify the Claimant’s disability as prolonged.

Conclusion

[67] For the reasons discussed above, I am allowing this appeal because the General Division failed to consider obvious reasons for gaps and discrepancies in the Claimant’s recollection. The General Division also mischaracterized the Claimant’s reasons for leaving her factory job.

[68] I have decided to give the decision that the General Division should have given and find the Claimant disabled as of July 2009, her last month of regular employment. Under the Canada Pension Plan, a person can’t be deemed disabled more than 15 months before the Minister received the application for a disability pension.^{Footnote 49} In this case, the Minister received the Claimant’s second application in March 2016. The Claimant is therefore deemed disabled as of December 2014. Since payments start four months after the deemed date of disability,^{Footnote 50} the Claimant’s disability pension starts as of April 2015.