Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, M. P., is entitled to a Canada Pension Plan (“CPP”) disability pension. Payments start as of April 2019. This decision explains why I am allowing the appeal.

Overview

[2] The Claimant is 47 years old. He stopped working as an auto body technician at X on May 20, 2016, after 15 years of steady employment there. He has not worked since then. He says he is unable to work due to back pain, anxiety, and depression. He said many years of physically demanding work took a toll on his body. In turn, his inability to work led to his mental health concerns.^{Footnote 1}

[3] The Claimant applied for a CPP disability pension on March 17, 2020. The Minister of Employment and Social Development (the “Minister”) refused his application because the Minister thought he could do some other type of work. The Minister also thought the Claimant was coping well with his conditions, and did not find the objective evidence (such as medical imaging) persuasive. The Claimant appealed that decision to the Social Security Tribunal’s General Division.

What the Claimant must prove

[4] For the Claimant to succeed, he must prove he has a disability that was severe and prolonged by December 31, 2018. This date is based on his CPP contributions.^{Footnote 2}

[5] The CPP defines “severe” and “prolonged”. A disability is severe if it makes a person incapable regularly of pursuing any substantially gainful occupation.^{Footnote 3} It is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 4}

Preliminary matter

[6] Due to a processing error at the Tribunal, Dr. Baxter’s letter of February 10, 2021^{Footnote 5}, was not part of the record at the hearing. The Claimant brought this letter to my attention at the hearing. I elected to admit the letter because of its high potential relevance. However, I gave the Minister until March 31, 2021, to make submissions on the letter. The Minister filed those submissions on March 31, 2021.^{Footnote 6}

Reasons for my decision

[7] I find the Claimant has a disability that was severe and prolonged by December 31, 2018. I reached this decision by considering the following issues.

The Claimant’s disability is severe

The Claimant’s limitations affect his ability to work

[8] The Claimant has mechanical back pain with degenerative disc disease. He also has depression with anxiety. However, my focus is not on the Claimant’s diagnoses.^{Footnote 7} I must focus on whether he has functional limitations that get in the way of him earning a living.^{Footnote 8} This means I have to look at all the Claimant’s medical conditions (not just the main one) and think about how his conditions affect his ability to work.^{Footnote 9}

[9] I find the Claimant has functional limitations. Here is what I considered.

What the Claimant says about his limitations

[10] When he applied for CPP disability benefits, the Claimant said the limitations from his medical conditions affected his ability to work in the following ways. He could sit for only 15 minutes. He could stand for only 20 minutes. He was also limited to 15 minutes of driving. He could not walk for 15 minutes. He could not lift or carry anything above five pounds. His reaching and bending were quite limited. Pain affected his memory and concentration. Household maintenance was limited due to his problems with standing, moving, walking, bending and reaching.^{Footnote 10} He could not kneel, bend, or crouch for any length of time.^{Footnote 11}

[11] T. P. was a witness at the hearing and gave most of the oral evidence. She said she was in daily contact with the Claimant for the last five years, and sees him roughly five times a week. T. P. said it was hard for the Claimant to sit or stand for any length of time. He can do very little, if any, kneeling, bending or lifting. He cannot exert himself. Due to his anxiety and depression, he finds it hard to start the day. He finds it hard to go to a store or a gas station. T. P. described extreme pain. On his bedridden days, just going to the bathroom is a real challenge. He often cannot follow through and do scheduled things. At the hearing, the Claimant said he had little to add to T. P.’s evidence.

What the medical evidence says about the Claimant’s limitations

[12] The Claimant must provide objective medical evidence that shows his limitations affected his ability to work by December 31, 2018.^{Footnote 12} The medical evidence supports what the Claimant says. In February 2018, Dr. Baxter (Family Doctor) said the Claimant was unable to work because of his back pain.^{Footnote 13} While there appears to have been an improvement that summer, Dr. Baxter noted in October 2018 that the Claimant’s back pain again caused significant muscle spasm. He needed to pace himself and limit his activity.^{Footnote 14}

[13] Little improvement was seen in 2019. In August 2019, Dr. Baxter said the Claimant’s back pain markedly restricted his physical activity. The Claimant also had mood swings due to major depression with anxiety.^{Footnote 15} His depression and isolation had increased by November 2019.^{Footnote 16} In December 2019, Dr. Baxter confirmed that the Claimant was easily overwhelmed. His focus and energy were compromised. He was unable to seek or maintain gainful employment.^{Footnote 17}

[14] Later evidence also supports the Claimant’s inability to work by December 31, 2018. In March 2020, Dr. Baxter said the Claimant had been unable to work since 2016 for medical reasons. He had marked restrictions for any activity, with pain at rest aggravated by minimal activity. Simple day-to-day tasks took an abnormal length of time to complete. His depression affected his energy, focus and concentration. He was not even capable of sedentary activity.^{Footnote 18} In February 2021, Dr. Baxter again affirmed the Claimant’s inability to work since 2016.^{Footnote 19}

[15] The evidence shows the Claimant’s back pain prevented him from doing any physical work by December 31, 2018. His back pain limited his movement and left him unable to maintain a position or activity. This was complicated by anxiety and depression.

The Claimant has not followed medical advice

[16] To receive a disability pension, a person must follow medical advice.^{Footnote 20} If a person does not do this, then she/he must have a reasonable explanation for not following the advice. I must also consider what effect, if any, the advice would have had on the person’s disability.^{Footnote 21}

[17] The Claimant has not followed all medical advice. However, he gave a reasonable explanation for not following the advice. In November 2019, Dr. Baxter strongly recommended counselling for the Claimant’s depression and anxiety.^{Footnote 22} At the hearing, the Claimant said he did not attend counselling. He said he would have had to pay for the counselling himself, but he could not afford it.

[18] In the circumstances, the Claimant’s explanation is reasonable. The Claimant has not worked since May 2016. He also said he was unable to get financial support for medical marijuana, although he wanted to use it. Because the Claimant gave a reasonable explanation, it does not matter that he did not follow the advice about getting counselling. I do not see other evidence of a failure to follow medical advice. The Claimant said he tries to do the home exercises recommended by Dr. Baxter. He attended counselling in 2016 and 2017. He previously attended physiotherapy. Dr. Baxter never recommended attending a pain clinic.

[19] I now have to decide if the Claimant can regularly do other types of work. To be severe, the Claimant’s limitations must prevent him from earning a living at any type of work, not just his usual job.^{Footnote 23}

The Claimant can’t work in the real world

[20] When I am deciding if the Claimant can work, I must consider more than just his medical conditions and how they affect what he can do. I must also consider his age, level of education, language ability, and past work and life experience.^{Footnote 24} These factors help me decide if the Claimant has any ability to work in the real world.

[21] I find that the Claimant cannot work in the real world. The Claimant was only 45 years old in 2018. He speaks English fluently. He completed Grade 12, and was licensed as an auto body technician about 20 years ago.^{Footnote 25} However, his work experience has been quite narrow.

[22] The Claimant was an auto body technician at X from 2001 to 2016. He worked as an auto body technician even before that. His other work consisted of installing shingles and working in a scrapyard. All this work is highly physical. Although he is still relatively young, his functional limitations prevent him from doing physical work or even retraining for less physical work. Dr. Baxter has repeatedly affirmed the Claimant’s inability to do even sedentary work.^{Footnote 26} Given his history and circumstances, it is not realistic for him to work.

[23] I find that the Claimant’s disability was severe by December 31, 2018.

Comments on the Minister’s submissions

[24] The above analysis addresses most of the Minister’s submissions. However, I will briefly address two of them now.

[25] The Minister submitted that the Claimant was coping well with his conditions. I accept that this was the case in July 2018 and September 2018, when his symptoms seemed to abate briefly.^{Footnote 27} However, the Claimant only needs to establish a severe and prolonged disability by December 31, 2018. His symptoms and functioning worsened again by October 2018.^{Footnote 28}

[26] The Minister also suggested that the objective medical evidence, such as imaging, was not persuasive. However, not all disabling conditions can be proven through objective reports. Chronic pain and mental health conditions, both of which affect the Claimant, are particularly resistant to objective verification. Importantly, Dr. Baxter recognizes the existence of both chronic pain^{Footnote 29} and depression^{Footnote 30} before December 31, 2018.

The Claimant’s disability is prolonged

[27] The Claimant’s current conditions began by December 31, 2018, have continued since then, and will more than likely continue indefinitely.^{Footnote 31}

[28] Dr. Baxter has not suggested any work capacity since October 2018. I see no discussion of a return to work. In fact, as noted above, Dr. Baxter has specifically denied any work capacity on several occasions.^{Footnote 32}

[29] In both October 2020 and February 2021, Dr. Baxter observed that the Claimant’s limitations had been longstanding. His conditions had “remained refractory” despite treatment such as physiotherapy.^{Footnote 33} In June 2020, Dr. Baxter noted that the Claimant’s back pain and depression had existed for ten years. Dr. Baxter said they were protracted and prolonged.^{Footnote 34}

[30] The subjective evidence also supports a long-term disability. The Claimant doesn’t think he can work again, despite a desire to work. His history suggests he is not averse to work. He worked at the same job for 15 years, and reached the maximum CPP contribution amount for most of those years.^{Footnote 35} His pay was based on the work completed, rather than the number of hours worked. He says he continues to see Dr. Baxter every 1-2 months, in an attempt to control his pain and depression. Most visits involved the adjustment of medication.

[31] T. P. noted that prior counselling^{Footnote 36} did not help the Claimant’s anxiety and depression. The past failure of counselling suggests that it might not help the Claimant even if he had the financial means to pursue it. Physiotherapy and home exercises haven’t helped him either. His pain medication does not seem to have a strong effect. She has seen no real change in his pain level since 2016. She has seen only minimal change in his anxiety and depression. She did not think his pain would improve. The Claimant endorsed T. P.’s evidence.

[32] The Claimant’s disability is likely to be long continued and of indefinite duration, and has been since December 31, 2018. I find his disability was prolonged by December 31, 2018.

When payment begins

[33] The Claimant had a severe and prolonged disability in October 2018. This was when Dr. Baxter noted more significant pain and activity limitations, after a brief improvement during the summer months.^{Footnote 37} However, the CPP says a person cannot be considered disabled more than 15 months before the Minister receives their disability application. After that, there is a four-month waiting period before payments start.^{Footnote 38} The Minister received the Claimant’s application in March 2020. That means he is considered disabled as of December 2018. As a result, his pension payments start in April 2019.

Conclusion

[34] I find the Claimant is eligible for a CPP disability pension because his disability is severe and prolonged.

[35] This means the appeal is allowed.