Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] I am refusing the Claimant leave (permission) to appeal.

Overview

[2] The Claimant is a 46-year-old former factory worker. In July 2000, she left her job in a window assembly plant because she had increasing difficulty standing for extended periods. She was employed in a grocery store bakery for three months in 2006 but has otherwise not worked since.

[3] In June 2019, the Claimant applied for a Canada Pension Plan (CPP) disability pension. She claimed that she could no longer work because of numerous medical conditions, including left foot nerve damage, celiac disease, hematuria, lupus, cell anemia, lymphatic legs, urinary tract infections, bladder infections, and chronic bronchial pneumonia.

[4] The Minister refused the application because, in its view, the Claimant had not shown that she had a severe and prolonged disability as of March 31, 2010, the last time she had coverage for benefits.^{Footnote 1}

[5] The Claimant appealed the Minister’s refusal to the Social Security Tribunal’s General Division. The General Division held a hearing by teleconference and, in a decision dated May 29, 2021, dismissed the appeal. The General Division looked at the Claimant’s medical file and found insufficient evidence that she was regularly incapable of a substantially gainful occupation as of March 31, 2010. In particular, the General Division found that the Claimant had made insufficient effort to pursue alternative employment that might have been within her capabilities.

[6] The Claimant is now requesting permission to appeal from the Appeal Division. She insists that she is disabled and notes that she had recently been diagnosed with fibromyalgia. She also alleges that the General Division made the following errors:

• It proceeded with the hearing even though the Claimant was nervous and medicated on various antidepressants and painkillers; and
• It ignored the fact that her doctors confirmed that she was disabled before March 31, 2010.

[7] I have reviewed the General Division’s decision and the Claimant’s medical file. I have concluded that the Claimant’s appeal does not have a reasonable chance of success.

Issue

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

• proceeded unfairly;
• interpreted the law incorrectly; or
• based its decision on an important factual error.^{Footnote 2}

[9] An appeal can proceed only if the Appeal Division first grants leave to appeal.^{Footnote 3} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 4} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.^{Footnote 5}

[10] I have to decide whether the Claimant has an arguable case.

Analysis

[11] Much of the Claimant’s submissions repeat allegations that she has already made at the General Division. However, the Appeal Division is not a place for the parties to re-argue their case. Instead, the Appeal Division reviews the General Division’s decision to decide if it contains errors. For the same reason, the Appeal Division will generally not consider new evidence, or existing evidence that could have been submitted to the General Division.

There is no arguable case that the General Division violated Claimant’s right to procedural fairness

[12] The Claimant argues that the General Division acted unfairly by going ahead with its hearing even though she was nervous and heavily medicated.

[13] I don’t doubt that the Claimant felt nervous speaking to the presiding General Division member. Most people in the Claimant’s position find it stressful to describe their medical problems to a government official—especially one who has the power to award or deny them an important benefit. However, I have listened to the recording of the hearing and heard nothing to suggest that the Claimant’s anxiety prevented her from making her case.

[14] At the outset, the Claimant mentioned that she was nervous. The member took a moment to offer her reassurance: “We’ll go slowly and if at some time you feel a little overwhelmed and you want to take a short break, that’s fine—just let me know.”^{Footnote 6} The Claimant replied, “No, I’m OK.”

[15] If the Claimant was feeling anxious or overmedicated, then this was her opportunity to ask for, not just a break, but an adjournment or postponement of the hearing. She did not do so.

[16] The hearing proceeded. To my ears, the Claimant did not show any overt sign of distress. For the most part, she seemed calm and composed, and she was able to present her evidence without difficulty. She answered the member’s questions lucidly, and I did not detect any signs of impairment.

[17] The member had no reason not to believe that the Claimant was ready, willing, or able to proceed. I don’t see an arguable case that the General Division acted unfairly by continuing with the hearing.

There is no arguable case that the General Division ignored medical evidence

[18] The Claimant argues that the General Division dismissed her appeal in the face of medical evidence showing she is no longer capable of work. In particular, she says that the General Division ignored reports from Dr. Ian Sutton and Dr. Kevin Saunders, both of whom said she was disabled before March 31, 2010.

[19] One of the General Division’s jobs is to make findings of fact. In doing so, it is presumed to have considered all the evidence before it.^{Footnote 7} In this case, I don’t see any indication that the General Division disregarded any significant item of medical information on file.

[20] The General Division was well aware of Dr. Saunders’ and Dr. Sutton’s reports, and it addressed them in its decision:

• In February 2002, Dr. Saunders said that the Claimant still had a significant amount of pain and swelling in her toes since undergoing surgery three months earlier. She was unable to wear a shoe and had difficulty with any amount of weight bearing.^{Footnote 8}
• In July 2002, Dr. Sutton said that the Claimant had experienced left-sided foot pain. “It appears this lady is suffering from sympathetically maintained pain. If this is a Complex Regional Pain syndrome, it is likely an early case.”^{Footnote 9}

[21] The General Division also noted more recent reports from Dr. Saunders and Dr. Sutton, who both declared the Claimant severely disabled. However, the General Division gave these reports minimal weight because they referred to the Claimant’s current condition, rather than to her condition during the more relevant period, which ended more than 11 years ago. As the General Division repeatedly emphasized throughout its decision, the Claimant was required to show that she became disabled on or before March 31, 2010. The General Division acknowledged that the Claimant had some difficulty standing and walking before that date. However, it determined, after weighing the available evidence, that her condition did not prevent her from pursuing alternative employment.

[22] I don’t see an arguable case that the General Division erred in making this finding.

Conclusion

[23] The Claimant has not identified any grounds of appeal that would have a reasonable chance of success. Thus, permission to appeal is refused.