LM v Minister of Employment and Social Development

LM v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2023-01-16 Neutral citation 2023 SST 108 Reference number GP-22-44 Member Antoinette Cardillo Division General Division Decision Appeal dismissed Decision Content Citation: LM v Minister of Employment and Social Development, 2023 SST 108 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: L. M. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated October 20, 2020 (issued by Service Canada)Footnote 1 Tribunal member: Antoinette Cardillo Type of hearing: Videoconference Hearing date: November 16, 2022 Hearing participant: Appellant Decision date: January 16, 2023 File number: GP-22-44 On this page Decision Overview What the Appellant must prove Reasons for my decision Conclusion Decision [1] The appeal is dismissed. [2] The Appellant, L. M., isn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal. Overview [3] The Appellant is 45 years old with a college education. She stated she last worked as a sales representative from January 6, 2020, to March 8, 2020, when she stopped due to her medical condition. She also worked as an employment consultant from July 3, 2018, to January 3, 2020. She claimed she was no longer able to work as of May 2020. [4] The Appellant applied for a CPP disability pension on March 22, 2021.Footnote 2 She based her disability claim on borderline personality disorder, mood swings, depression, migraines, anxiety, panic attacks, and suicidal thoughts. [5] The Minister of Employment and Social Development (Minister) refused her application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division. [6] The Minister says that although the Appellant may continue to experience some ongoing symptoms and associated limitations from her mental health conditions, the overall medical evidence on file is not indicative of the presence of a severe and prolonged medical condition prior to her MQP of December 31, 2016. The Appellant also retained the capacity to work full-time from July 2018 until March 2020 after her last qualifying date of December 31, 2016. What the Appellant must prove [7] For the Appellant to succeed, she must prove she has a disability that was severe and prolonged by December 31, 2016, and continues to be severe and prolonged. This date is based on her contributions to the CPP.Footnote 3 [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 4 [10] A substantially gainful occupation is one that pays as much or more than the maximum amount of a CPP disability pension.Footnote 5 [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 6 [12] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep the Appellant 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. Reasons for my decision [14] I find that the Appellant hasn’t proven she has had a severe and prolonged disability continuously since December 31, 2016. Is the Appellant’s disability severe? [15] The Appellant’s disability hasn’t been continuously severe. I reached this finding by considering several factors. I explain these factors below. The Appellant’s functional limitations affect her ability to work [16] The Appellant suffers from borderline personality disorder, mood swings, depression, migraines, anxiety, panic attacks and suicidal thoughts. [17] However, I can’t focus on the Appellant’s diagnoses.Footnote 7 Instead, I must focus on whether she had functional limitations that got in the way of her earning a living.Footnote 8 When I do this, I have to look at all of the Appellant’s medical conditions (not just the main one) and think about how they affected her ability to work.Footnote 9 [18] I find that the Appellant has functional limitations that affected her ability to work by December 31, 2016. What the Appellant says about her functional limitations [19] The Appellant says that her medical conditions have resulted in functional limitations that affect her ability to work. [20] She testified that she always struggled with her mental health. From 2014, she was off work for approximately five years. She had many relapses over the years. [21] The Appellant explained her struggles through the years with anxiety, migraines, not being able to get out of bed, having difficulty functioning at work and meet with clients. She wanted to quit so many times over the years, but she pushed herself to carry on. She explained that at her last job from 2018 to 2020, no one was aware of her condition. She had a colleague who occasionally would replace her in meetings with clients. She did say however that despite her struggles, she was able to perform her work without anyone noticing her limitations. After her contract ended, she was asked to stay and she was offered another contract, which she accepted. She also worked from home for a period of time, but she had to stop because of her medical conditions in March 2020. [22] She said that her mental health conditions make her an unpredictable employee, she never knows how she is going to feel from one day to the next. What the medical evidence says about the Appellant’s functional limitations [23] The Appellant must provide some medical evidence that supports that her functional limitations affected her ability to work by December 31, 2016.Footnote 10 [24] The medical evidence shows the Appellant suffered from mental health conditions for many years prior to her MQP of December 31, 2016.Footnote 11 [25] A report dated January 7, 2015, from Dr. Sasseville, family physician, said that the Appellant’s diagnoses were major depression, anxiety disorder with panic attacks, migraines, personal and professional problems. She suffered a previous depression in 2007 and a burn out in 2013, when she was off work for 2-3 months. Dr. Sasseville said it would be a long process for a full recovery and the Appellant could relapse if stress increased. [26] On June 16, 2016, Dr. Royle, psychiatrist, said that the Appellant appeared to be experiencing a depression, however, he believed that a lot of her depressive symptoms were a result of her environment and her challenges with coping. She also appeared to have some borderline personality traits at baseline (chronic vulnerability to mood swings, some rejection sensitivities, mood dysregulation with anger issues historically, some abandonment fears dating back to adolescence). Also, there appeared to be a history of alcohol misuse for which he cautioned her, given her mood symptoms and anxiety.Footnote 12 [27] On February 14, 2017, Dr. Sasseville said that she had not seen the Appellant since September 27, 2016, at which time she continued to take medication for her depression with improvement. She was currently on Cipralex as suggested by her psychiatrist.Footnote 13 [28] On May 1st, 2020, Dr. Beriault, family physician, said that the Appellant’s mental health symptoms had decompensated over the last months but also noted that she had stopped taking medication. Her diagnoses were borderline personality disorder, depression, and anxiety.Footnote 14 [29] A report dated March 31, 2021, from Dr. Brassard, family physician, said that the Appellant was diagnosed with depression and borderline personality disorder. She had difficulties with concentration, mood, and sleep as well as with interpersonal relationships and working in a group environment. He recommended she stop working in May 2020, and a return to work in the future remained unknown. She would require work with low stress and independence.Footnote 15 [30] In a letter dated November 21, 2021, Dr. Brassard said that he supported the Appellant’s appeal. He noted that the Appellant had been his patient for almost two years, but she had been the patient of the physician he was replacing since 2006. In reviewing her medical file since 2006, he said that she had suffered from recurrent depressive episodes as well as anxiety which made her incapable of working continuously. She tried numerous times to return to work, but she couldn’t keep these jobs because of her mental illness. Footnote 16 The Appellant’s disability wasn’t continuous [31] The Appellant’s mental health issues are borderline personality disorder, mood swings, depression, migraines, anxiety, panic attacks and suicidal thoughts. However, it is not the diagnosis of diseases, but the Appellant’s capacity to work, that determines the severity of the disability under the CPP.Footnote 17 [32] I recognize that the Appellant has struggled with her mental health issues for many years, but not only has she shown that she was able to retrain, but she was regularly able to work at substantially gainful employment, despite her functional limitations between July 2018 and March 2020. The Appellant had work capacity after December 31, 2016 [33] I must take a “real world” approach when I consider whether the Appellant’s disability was severe. This means I must consider factors such as her age, level of education, language abilities, and past work and life experience.Footnote 18 I must think about how these matters realistically affected her ability to earn a living. If the Appellant can regularly do some kind of work that she could earn a living from, then she isn’t entitled to a disability pension. The severity of the disability depends on an appellant’s inability to do any work, not just their regular job.Footnote 19 [34] The Appellant was 38 years old at her MQP of December 31, 2016. This is more than twenty-five years before the usual retirement age. So, her age didn’t affect her ability to work. [35] She testified that she was able to retrain from September 2016 to April 2018. She took online courses from September 2016 to April 2018. She then returned to work in 2018 to 2020 on a full-time basis. However, the Appellant said that in 17 months of work, she missed about 17 days (140 hours). She did continue to get paid despite time missed at work. She also worked from home for a short period of time. [36] She also testified that when she returned to work in 2018, no one at work knew about her conditions and struggles. She did miss time from work but at the end of her first contract, she was asked to stay and was offered a second contract. She did have to stop because of her medical conditions in March 2020. The Appellant however had the capacity to work regularly on a full-time basis for more than 15 months well after her MQP of December 31, 2016. [37] She said that her mental health conditions make her an unpredictable employee, she never knows how she is going to feel from one day to the next. However, her employer’s apparent satisfaction with her work from 2018 to 2020 shows she wasn’t unpredictable in performance or attendance. She was offered a second contract. [38] The Appellant’s work efforts were successful. She earned a substantially gainful income from 2018 to 2019.Footnote 20 Her record of earnings showed an income of $21,261 in 2018 and of $43,646 in 2019. The Appellant didn’t have a benevolent employer [39] The Appellant didn’t have a benevolent employer. [40] If the Appellant had a benevolent employer, it could mean she wasn’t actually capable of working at her job, despite what her doctor said and what her income showed. [41] A benevolent employer will change working conditions and lower their expectations if an employee has limitations. They expect significantly less from the disabled employee than from other employees. They accept that the employee can’t work at a competitive level.Footnote 21 [42] This doesn’t describe the Appellant’s jobs from 2018 to 2020. She had regular duties. She worked by herself, without help except occasionally. Her employer must have expected that she would do the job properly. In addition, her employer asked to stay on after her first contract. [43] In November 2021, Dr. Brassard stated that he thought the Appellant was unable to work and would be unable to work in the future. However, this is well after the Appellant’s MQP of December 31, 2016. Conclusion [44] I find that the Appellant’s disability was not continuously severe after December 31, 2016. [45] Because the Appellant’s disability was not continuously severe, I do not need to decide whether it was prolonged. [46] This means the appeal is dismissed. Footnotes Footnote 1 There is a mistake on the date of the reconsideration decision letter. The reconsideration decision was made in October 2021, not October 2020 (see GD2-67). Footnote 2 See GD2-26. Footnote 3 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 GD6-13. In Canada (Attorney General) v Angell, 2020 FC 1093, the Federal Court said that an appellant has to show a severe and prolonged disability by the end of their minimum qualifying period and continuously after that. See also Brennan v Canada (Attorney General), 2011 FCA 318. Footnote 4 Section 42(2)(a) of the Canada Pension Plan gives this definition of severe disability. Footnote 5 See section 68.1 of the Canada Pension Plan Regulations. The substantially gainful amounts for 2018, 2019, and 2020 were $16,029.96, $16,353.54, and $16,677.26. Footnote 6 Section 42(2)(a) of the Canada Pension Plan gives this definition of prolonged disability. Footnote 7 See Ferreira v Canada (Attorney General), 2013 FCA 81. Footnote 8 See Klabouch v Canada (Attorney General), 2008 FCA 33. Footnote 9 See Bungay v Canada (Attorney General), 2011 FCA 47. Footnote 10 See Warren v Canada (Attorney General), 2008 FCA 377; and Canada (Attorney General) v Dean, 2020 FC 206. Footnote 11 See reports from GD1-18 to 322. Footnote 12 See report at GD1-13. Footnote 13 See report at GD1-351. Footnote 14 See report at GD1-411. Footnote 15 See report at GD2-76. Footnote 16 See letter at GD1-10. Footnote 17 See Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 18 See Villani v Canada (A.G.), 2001 FCA 248. Footnote 19 See Klabouch v Canada (Social Development), 2008 FCA 33. Footnote 20 The substantially gainful amounts for 2018, 2019, and 2020 were $16,029.96, $16,353.54, and $16,677.26. Footnote 21 The Federal Court of Appeal said this in Atkinson v Canada (Attorney General), 2014 FCA 187.