KS v Minister of Employment and Social Development

KS v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2023-04-21 Neutral citation 2023 SST 2112 Reference number GP-22-98 Member Dawn Kershaw; Pierre Vanderhout; Wayne van der Meide Division General Division Decision Appeal dismissed Subjects CPP - Disability - Severe - Work capacity CPP - Disability - Severe - Work capacity - Ability to perform alternate work Decision Content Citation: KS v Minister of Employment and Social Development, 2023 SST 2112 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: K. S. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated October 7, 2021 (issued by Service Canada) Tribunal members: Dawn Kershaw Pierre Vanderhout Wayne van der Meide Type of hearing: Teleconference Hearing date: April 13, 2023 Hearing participant: Appellant Decision date: April 21, 2023 File number: GP-22-98 On this page Decision Overview What the Appellant must prove Reasons for my decision Conclusion Decision [1] The appeal is dismissed. [2] The Appellant, K. S., isn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appealFootnote 1. Overview [3] The Appellant is 53 years old. She last worked as a Director of Risk Management for the B.C. government. She has had depression and anxiety for about 30 years. She stopped working in June 2020 because her depression and anxiety worsened. She also had shoulder pain from a fall in March 2020. [4] The Appellant applied for a CPP disability pension on March 9, 2021. The Minister of Employment and Social Development (Minister) refused her application. She asked the Minister to reconsider that decision. The Minister maintained its original decision. The Appellant appealed the Minister’s reconsideration decision to the Social Security Tribunal’s General Division. [5] The Appellant says that for a period of time she wasn’t able to work at any job because of chronic low mood, anxiety and frozen shoulders. [6] The Minister says that even if her condition was severe, it wasn’t prolonged because the medical evidence says that the appellant should be able to return to work in the foreseeable future. What the Appellant must prove [7] For the Appellant to succeed, she must prove she had a disability that is severe and prolonged by the hearing date.Footnote 2 [8] The Canada Pension Plan defines “severe” and “prolonged.” [9] A disability is severe if it makes an appellant incapable regularly of pursuing any substantially gainful occupation.Footnote 3 [10] This means I have to look at all of the Appellant’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 she 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 4 [12] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep her out of the workforce for a long time. [13] The Appellant 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. I didn’t need updated medical records from the Appellant [14] The Appellant didn’t submit any medical records for the period from December 2021 to the hearing date. She said she thought she could not do so. [15] I told the Appellant that we could talk about additional medical documents later in the hearing. At the end of the hearing, she said she didn’t feel she needed to submit any more medical documents because she told us about her medical condition during the hearing. Reasons for my decision [16] I find that the Appellant hasn’t proven she had a severe and prolonged disability by the hearing date. Is the Appellant’s disability severe? [17] The Appellant’s disability isn’t severe. I reached this finding by considering several factors. I explain these factors below. The Appellant’s functional limitations affect her ability to work [18] The Appellant has: Bipolar disorder Depression and anxiety Frozen shoulders [19] However, I can’t focus on the Appellant’s diagnoses.Footnote 5 Instead, I must focus on whether she has functional limitations that get in the way of her earning a living.Footnote 6 When I do this, I have to look at all of her medical conditions (not just the main one) and think about how they affect her ability to work.Footnote 7 [20] I find that the Appellant has functional limitations (cognitive deficits) that affect her ability to work, but I find that they don’t affect her ability to do all work. The following sections explain how I made that finding. What the Appellant says about her functional limitations [21] The Appellant says she has no functional limitations because of her shoulders. She says she still has some functional limitations because of her depression and anxiety. [22] The Appellant stopped working in June 2020 because her depression and anxiety worsened. She and her doctor worked together for almost three years to find the right mix of drugs for her. Her mood has been stable since December 2022. [23] The Appellant testified that her bipolar disorder means she has ups and downs. Until her mood stabilized, she didn’t realize how unwell she was. [24] The Appellant said she is much better now, but she still has the following functional limitations: trouble remembering what she reads difficulty focusing and multitasking, and being slower to learn new things. [25] The Appellant also says she naps during the day but says this is partly because of her medications and partly because she is bored because she is not working. What the medical evidence says about the Appellant’s functional limitations [26] The Appellant must provide some medical evidence that supports that her functional limitations affected her ability to work by the hearing date.Footnote 8 Her October 2021 neuropsychological assessment supports what she says.Footnote 9 The assessment says research shows that “cognitive deficits may persist in individuals whose depressive symptoms have remitted”.Footnote 10 [27] Although the assessment says that the Appellant has problems dealing with other people, she says she doesn’t have this problem anymore because her medications workFootnote 11. [28] The assessment says if the Appellant can return to work, she will need a facilitated, gradual return.Footnote 12 She says she might be deconditioned because she hasn’t worked since June 2020. [29] The medical evidence supports the Appellant’s testimony that she still has ongoing functional limitations, but she testified she can work at a job despite her functional limitations. I will now address that issue. [30] I have to decide whether the Appellant can regularly do other types of work. To be severe, her functional limitations must prevent her from earning a living at any type of work, not just her usual job.Footnote 13 The Appellant can work in the real world [31] When I am deciding whether the Appellant can work, I can’t just look at her medical condition and how it affects what she can do. I must also consider factors such as her: age level of education language abilities past work and life experience [32] These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that she can work.Footnote 14 [33] I find that the Appellant can work in the real world. She is highly educated. She has a bachelor’s degree in nursing and a master’s degree in psychology. [34] The Appellant has a long work history that involves mentally challenging jobs such as director of risk management; health clinic manager; and director of client relations and risk management. When she was younger, she also worked as a cashier and camp counsellor. [35] The Appellant can use a computer. She can do remote work and did that kind of work in the past. [36] The Appellant wants to go back to work. She doesn’t think she can do her last job now because it was mentally challenging, but she says she can do a different kind of job even with her functional limitations. [37] I find the Appellant can return to work. Her functional abilities have improved since the assessment because the medications work. [38] The psychologist wasn’t sure at the time of the assessment if the Appellant could return to work, but her mood stabilized after that assessment. [39] The assessment also was to see if the Appellant could go back to her old job, not any job. The test for long term disability isn’t the same as the test for CPP. I have to assess whether she can do any job, not just her old job. Her testimony convinces me she can. [40] I find that the Appellant can do a different job that isn’t as mentally challenging. The Appellant didn’t try to find and keep a suitable job [41] If the Appellant can work in the real world, she must show that she tried to find and keep a job. She must also show her efforts weren’t successful because of her medical conditions.Footnote 15 Finding and keeping a job includes retraining or looking for a job she can do with her functional limitations.Footnote 16 [42] The Appellant didn’t try to work. She explains that she didn’t return to her former job because she is waiting for another assessment to find out her work restrictions. She hopes to return to a job with her former employer. [43] Because she is waiting to see if she can go back to her former place of employment, the Appellant hasn’t returned to some other type of work even though she says she can do a less demanding job. [44] Therefore, I can’t find she has a severe disability by the hearing date. Conclusion [45] I find that the Appellant isn’t eligible for a CPP disability pension because her disability isn’t severe. Because I have found that her disability isn’t severe, I didn’t have to consider whether it is prolonged. [46] This means the appeal is dismissed. Footnotes Footnote 1 The Tribunal formed a three-member panel to hear this appeal. Section 61 of the Department of Employment and Social Development Act gives the Chairperson of the Tribunal this power. Despite the singular “I” and “me,” all three panel members wrote this decision. Footnote 2 Service Canada uses an appellant’s years of CPP contributions to calculate their coverage period, or “minimum qualifying period” (MQP). The end of the coverage period is called the MQP date. See section 44(2) of the Canada Pension Plan. The Appellant’s CPP contributions are on page GD2-39 & GD4-12. In this case, the Appellant’s coverage period ends after the hearing date, so I have to decide whether she is disabled by the hearing date. Footnote 3 Section 42(2)(a) of the Canada Pension Plan gives this definition of severe disability. Footnote 4 Section 42(2)(a) of the Canada Pension Plan gives this definition of prolonged disability. Footnote 5 See Ferreira v Canada (Attorney General), 2013 FCA 81. Footnote 6 See Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 7 See Bungay v Canada (Attorney General), 2011 FCA 47. Footnote 8 See Warren v Canada (Attorney General), 2008 FCA 377; and Canada (Attorney General) v Dean, 2020 FC 206. Footnote 9 See Dr. MacSween’s neuropsychological report at GD3-2. Footnote 10 See Dr. MacSween’s report at GD2-16. Footnote 11 See Dr. MacSween’s report at GD3-16. Footnote 12 See Dr. MacSween’s report at GD3-16. Footnote 13 See Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 14 See Villani v Canada (Attorney General), 2001 FCA 248. Footnote 15 See Inclima v Canada (Attorney General), 2003 FCA 117. Footnote 16 See Janzen v Canada (Attorney General), 2008 FCA 150.