Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Claimant, N. S., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of June 2018. This decision explains why I am allowing the appeal.

Overview

[3] The Claimant was born in 1979. She went to community college and obtained an office administration executive certificate program. She worked as a restaurant hostess. She last worked at a call centre. She has not worked since November 2015, after sustaining injuries in a motor vehicle accident.

[4] The Claimant applied for a CPP disability pension on May 30, 2019. The Minister of Employment and Social Development (Minister) refused her application. The Claimant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Claimant says she cannot work at any type of job because of her motor vehicle accident injuries. She suffers from chronic pain syndrome, possible fibromyalgia, depression, and anxiety.

[6] The Minister says that the medical evidence did not show that the Claimant had a severe disability under the CPP.

What the Claimant must prove

[7] For the Claimant to succeed, she must prove she had a disability that was severe and prolonged by the hearing date.^{Footnote 1}

[8] The Canada Pension Plan defines “severe” and “prolonged.”

[9] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[10] This means I have to look at all of the Claimant’s medical conditions together to see what effect they have on her ability to work. I also have to look at her background (including her age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether her disability is severe. If the Claimant is able to regularly do some kind of work that she could earn a living from, then she isn’t entitled to a disability pension.

[11] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 3}

[12] This means the Claimant’s disability can’t have an expected recovery date. The disability must be expected to keep the Claimant out of the workforce for a long time.

[13] The Claimant has to prove she has a severe and prolonged disability. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not she is disabled.

Reasons for my decision

[14] I find that the Claimant had a severe and prolonged disability by her October 7, 2021 hearing date. I reached this decision by considering the following issues:

• Is the Claimant’s disability severe?
• Is the Claimant’s disability prolonged?

Is the Claimant’s disability severe?

[15] The Claimant’s disability is severe. I reached this finding by considering several factors. I explain these factors below.

The Claimant’s functional limitations do affect her ability to work

[16] The Claimant has chronic pain, depression, and anxiety. However, I can’t focus on the Claimant’s diagnoses.^{Footnote 4} Instead, I must focus on whether she has functional limitations that get in the way of her earning a living.^{Footnote 5} When I do this, I have to look at all of the Claimant’s medical conditions (not just the main one) and think about how they affect her ability to work.^{Footnote 6}

[17] I find that the Claimant has functional limitations.

What the Claimant says about her functional limitations

[18] The Claimant says that her medical conditions have resulted in functional limitations that affect her ability to work. She says that she has not been able to work at any type of job since a November 2015 motor vehicle accident because of severe pain, depression, and anxiety. She has not looked for work since November 2015. She receives long-term disability benefits.

[19] The Claimant believes that her condition has deteriorated with time. She received side effects from taking medication to treat her physical and psychological problems, including an upset stomach. She still sees a physiatrist on a regular basis. She also still receives care from a psychiatrist and psychologist.

[20] The Claimant says she has severe neck, back, leg, and hand pain. She has a driving phobia. She took a driving desensitization course, but her automobile insurance company stopped funding it. She has secured more funding from her automobile insurance company, and she plans on re-starting the driving desensitization course in the spring of 2022. Her parents currently drive her everywhere.

[21] The Claimant says she fears being around other people. She spends many of her days lying down. A psychiatrist recommended that she take virtual classes for social anxiety and depression. But she lies down during the course and has her camera off because she does not want to be seen. She receives counselling from a social worker. She is working with an occupational therapist to help manage her day to day activities. She will be seeing a speech language pathologist in the future.

[22] The Claimant says that she does no housework. She recently received insurance company funding for a personal support worker who helps her shower. Her mother helped her shower previously. She has a shower bench. She had rails installed in her shower. She uses a cane. She had to move to her parent’s single-level home. The home she shared with her husband had three levels and she had difficulty with the stairs. Her mother performs most of the child care tasks for her seven year old son.

[23] The Claimant says she is unemployable. She loved her last job at the call centre. But she cannot do it. She suffers from headaches and severe pain. She has constant pain. Her concentration is bad. She cannot look at a computer screen for a long time. Typing leads to hand and wrist pain. Sitting is painful for her. She has difficulty multi-tasking. She lacks the mobility to work as a restaurant hostess.

What the medical evidence says about the Claimant’s functional limitations

[24] The Claimant must provide medical evidence that shows that her functional limitations affected her ability to work by October 7, 2021.^{Footnote 7}

[25] The medical evidence supports what the Claimant says about her functional impairments. The medical evidence shows that the Claimant was injured in a November 2015 motor vehicle accident. She received physiotherapy treatment.

[26] A psychiatrist diagnosed her with major depression in March 2016.^{Footnote 8} She had problems with headaches and difficulty concentrating.^{Footnote 9} She had difficulty with standing and walking.^{Footnote 10}

[27] The Claimant saw a neurologist in April 2016 because of headaches, and numbness, tingling, and weakness in her limbs. The neurologist believed the Claimant had whiplash associated headaches, radicular left sided neck pain, and symptoms suggestive of restless leg syndrome.^{Footnote 11}

[28] An occupation therapist said that the Claimant performed poorly on a memory test in a June 2016 report. The occupational therapist noted that the Claimant had increased neck and back pain. The Claimant also had numbness and tingling in her right hand and a decreased ability to lift.^{Footnote 12}

[29] A clinical note from the Claimant’s family doctor from October 2016 said that the Claimant experienced neck pain with numbness that went into her left arm. Her family doctor said that the Claimant was receiving massage therapy.^{Footnote 13}

[30] The Claimant’s family doctor noted in 2017 that the Claimant suffered from myofascial pain syndrome.^{Footnote 14} She said that the Claimant suffered from whole body pain and took an anti-anxiety medication.^{Footnote 15} The Claimant had difficulty tolerating pain medications and suffered from poor sleep.^{Footnote 16} The Claimant’s family doctor told her insurance company that the Claimant had no response to treatment. She did not know if other treatments could help the Claimant.^{Footnote 17}

[31] The Claimant received occupational therapy treatment in 2017. The Claimant had grab bars installed in her bathtub and shower. The occupational therapist noted that the Claimant had difficulty with her activities of daily living, including shopping. The occupational therapist discussed pacing strategies with the Claimant, including shopping in smaller amounts.^{Footnote 18}

[32] The Claimant saw a physiatrist in March 2017. The physiatrist diagnosed the Claimant with a somatic symptom disorder.^{Footnote 19}

[33] The Claimant saw a neurologist in May and November 2017. The neurologist suspected the Claimant suffered from a chronic pain syndrome. She suggested that the Claimant needed a multi-disciplinary approach to chronic pain.^{Footnote 20}

[34] The Claimant saw a pain clinic doctor in September 2017. The pain clinic doctor diagnosed the Claimant with chronic migraine and cervical myofascial pain syndrome. He thought that the Claimant might have fibromyalgia. He believed that the Claimant could have benefited from nerve block injections.^{Footnote 21}

[35] The Claimant underwent a neuropsychological evaluation in November 2017. The neuropsychologist did not believe that the Claimant had a brain injury. But he noted the Claimant’s cognitive functioning had been compromised because of the November 2015 motor vehicle accident. He was of the opinion that the Claimant could not return to her pre-accident job.^{Footnote 22}

[36] The Claimant’s family doctor completed a medical report for the Minister in February 2018.^{Footnote 23} She said that the Claimant still experienced pain in her arms, legs, back, neck, and face.^{Footnote 24}

[37] The Claimant saw a physiatrist in August 2018. The physiatrist noted that the Claimant had received psychological counselling. The Claimant still suffered from pain and had low energy.^{Footnote 25}

[38] A social worker noted in August 2018 that the Claimant had been unable to drive on the highway. The social worker believed the Claimant needed more counselling.^{Footnote 26}

[39] The Claimant saw a physiatrist in January 2019. The physiatrist noted that the Claimant still suffered from back, knee, shoulder, knee, and wrist pain. He believed that the Claimant’s condition had plateaued.^{Footnote 27}

[40] The Claimant saw a psychiatrist in April 2019. The psychiatrist noted that the Claimant had difficulty concentrating. He noted that the Claimant had driver related anxiety.^{Footnote 28}

[41] A social worker wrote to the Minister in May 2019. She said that the Claimant experienced significant limitations in her physical, cognitive, psychological and social functioning. The Claimant needed help from her parents to care for her young son. She also noted that the Claimant had noise sensitivity.^{Footnote 29}

[42] An occupational therapist confirmed in a December 2019 that the Claimant had moved to her parent’s house. They Claimant’s parents were taking care of her child, as well as performing personal care tasks for the Claimant.^{Footnote 30}

[43] The Claimant underwent numerous medical assessments in 2020 and 2021 to see if she sustained a “catastrophic impairment” under Ontario’s automobile insurance law.

[44] A physiatrist said in March 2020 report that the Claimant’s pain complaints after the motor vehicle accident were complicated by her psychological problems. The physiatrist said the Claimant could not work at any type of job because of the widespread nature of her pain and her reduced functional tolerance.^{Footnote 31}

[45] A neuropsychologist diagnosed the Claimant with a major depressive disorder and post-traumatic stress disorder in an August 2020 report.^{Footnote 32}

[46] A physician wrote a report in September 2020, saying that the Claimant had a catastrophic impairment because of a marked or extreme impairment due to a mental or behavioural disorder.^{Footnote 33}

[47] A psychiatrist authored two reports in June 2021, saying that the Claimant had suffered a catastrophic impairment from a psychiatric perspective because of her motor vehicle accident injuries. She also noted that the Claimant’s symptoms were getting worse.^{Footnote 34}

[48] The Claimant continued to receive psychiatric treatment in 2021. The psychiatrist said the Claimant suffered from a generalized anxiety disorder with agoraphobia and panic attacks. The Claimant had ongoing stomach pain and had been diagnosed with gastritis.^{Footnote 35}

[49] An occupational therapist also noted that the Claimant was using a cane in a June 2021 report.^{Footnote 36}

[50] The medical evidence supports that the Claimant’s difficulties with standing, walking, concentrating, sleeping, and driving that prevented her from doing her household chores, provide child care, and work at her job at the call centre by October 7, 2021.

[51] Next, I will look at whether the Claimant followed medical advice.

The Claimant has followed medical advice

[52] To receive a disability pension, a claimant must follow medical advice.^{Footnote 37} If a claimant doesn’t follow medical advice, then she must have a reasonable explanation for not doing so. I must also consider what effect, if any, the medical advice might have had on her disability.^{Footnote 38}

[53] I find that the Claimant followed medical advice. She has followed up with her family doctor. She has seen psychiatrists, physiatrists, neurologists, and psychologists in an effort to deal with her physical and psychological health issues. She has seen social workers and received occupational therapy. She took pain and anti-depressant medications, but often experienced significant side effects. She tried physiotherapy and massage therapy. She went to pain clinics. However, she continues to suffer from severe pain, depression, and anxiety. She continues to receive psychiatric treatment.

[54] The Claimant was offered pain injections. But she declined this treatment option because she was afraid of needles. I do not place much significant on this. I agree with the argument of the Claimant’s legal representative that injections would have only offered temporary pain relief at best, and would not have cured her physical problems.

The Claimant can’t work in the real world

[55] When I am deciding whether the Claimant can work, I can’t just look at her medical conditions and how they affect what she can do. I must also consider factors such as her:

• age
• level of education
• language abilities
• past work and life experience

[56] These factors help me decide whether the Claimant can work in the real world—in other words, whether it is realistic to say that she can work.^{Footnote 39}

[57] I find that the Claimant can’t work in the real world. The Claimant is only 43 years old. She has post-secondary education and understands English. She has experience working with computers. Her life and work experience suggests that she can work at many jobs. However, I am still satisfied that she was incapable regularly of pursuing any substantially gainful occupation by October 7, 2021.

[58] I do not believe that the Claimant could have handled any type of physical work by October 7, 2021 because of her difficulty with walking and lifting.

[59] I do not believe that the Claimant could have handled any type of sedentary work by October 7, 2021 because of her impairments, which included difficulty concentrating. I do not believe that the Claimant could work on a computer because of her difficulty with sitting and concentrating. I do not believe that the Claimant could have handled a driving job because of her anxiety, lack of energy, and difficulty sitting. I accept that her ability to perform her activities of daily living was impaired by October 7, 2021. I find that she has had a severe disability under the CPP since November 2015, when she last worked.

[60] I disagree with the Minister that the medical evidence did not a show severe disability under the CPP.

[61] The Claimant suffers from chronic pain, depression, and anxiety. These medical conditions can be difficult to prove because there is no real way to measure a person’s pain levels, and psychological conditions can be highly subjective. Many of these cases come down to a Claimant’s credibility.

[62] I found the Claimant to be a credible witness. She had a strong work ethic. She was motivated to return to work and tried multiple treatments to get better, but nothing worked. I am satisfied that the Claimant could work, but I am satisfied that she cannot work at any job.

[63] The Claimant underwent numerous assessments at the request of her automobile insurance company to determine if she had a “catastrophic impairment”. The test for a “catastrophic impairment” in Ontario’s automobile insurance regime refers to specific diagnostic criteria that determine whether an individual is entitled to a greater pool of medical, rehabilitation, and attendant care benefits. The test for a “catastrophic impairment” differs from the test for a CPP disability benefit. But I place significant weight on the “catastrophic impairment” assessments. The physicians who assessed the Claimant did not doubt the severity of her symptoms. They accepted that she had marked impairments that made her unemployable. I see no reason to doubt their conclusions.

[64] I find that the Claimant’s disability was severe by October 7, 2021.

Is the Claimant’s disability prolonged?

[65] The Claimant’s disability is prolonged.

[66] The Claimant’s conditions began in November 2015. These conditions have continued since then, and they will more than likely continue indefinitely.^{Footnote 40}

[67] The Claimant’s family doctor provided the Claimant with a good prognosis for recovery and encouraged her to return to any type of work in 2016.^{Footnote 41} However, the Claimant’s family doctor changed his opinion. By 2017, she advised the Claimant’s disability insurance company that the Claimant had not responded to treatment and she could not see what else could be done to assist the Claimant.^{Footnote 42} In 2018, the Claimant’s family doctor provided the Claimant with an undetermined prognosis in her medical report to the Minister.^{Footnote 43}

[68] A psychiatrist said in April 2019 that the prognosis for the Claimant’s psychiatric symptoms depended upon the successful resolution of the Claimant’s pain symptoms.^{Footnote 44} However, the Claimant’s pain symptoms never resolved. A physiatrist provided the Claimant with a poor prognosis in March 2020.^{Footnote 45}

[69] The Claimant continues to receive treatment to deal with her physical and psychological problems. She is now being assisted by a personal support worker to help her with personal care activities.

[70] I am satisfied that the Claimant’s treatment is focused on managing her medical condition, and not curing them.

[71] I also find that the Claimant’s physicians are not contemplating the Claimant returning to work.

[72] I find that the Claimant’s disability was prolonged by October 7, 2021.

When payments start

[73] The Claimant had a severe and prolonged disability in November 2015, when she last worked.

[74] However, the Canada Pension Plan says a claimant can’t be considered disabled more than 15 months before the Minister receives their disability pension application. After that, there is a four-month waiting period before payments start.^{Footnote 46}

[75] The Minister received the Claimant’s application in May 2019. That means she is considered to have become disabled in February 2018.

[76] Payment of her pension starts as of June 2018.

Conclusion

[77] I find that the Claimant is eligible for a CPP disability pension because her disability is severe and prolonged.

[78] This means the appeal is allowed.