SR v Minister of Employment and Social Development

SR v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2022-10-28 Neutral citation 2022 SST 1176 Reference number GP-21-1206 Member Virginia Saunders Division General Division Decision Appeal allowed Decision Content Citation: SR v Minister of Employment and Social Development, 2022 SST 1176 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: S. R. Representative: Jennifer King Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated March 31, 2021 (issued by Service Canada) Tribunal member: Virginia Saunders Type of hearing: Videoconference Hearing date: September 21, 2022 Hearing participants: Appellant Appellant’s representative Decision date: October 28, 2022 File number: GP-21-1206 On this page Decision Overview What the Appellant must prove Matter I have to consider first Reasons for my decision Conclusion Decision [1] The appeal is allowed. [2] The Appellant, S. R., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of April 2020. This decision explains why I am allowing the appeal. Overview [3] The Appellant is 53 years old. She applied for a CPP disability pension in June 2020. In her application, she said she stopped working as a registered care aide in July 2019. She said she couldn’t work after that because of bipolar mental illness, PTSD (post-traumatic stress disorder), anger, and a sleep disorder. [4] The Minister of Employment and Social Development (Minister) refused the Appellant’s application. The Minister said the Appellant should be able to do some type of work. [5] The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division. What the Appellant must prove [6] For the Appellant to succeed, she must prove she has a disability that was severe and prolonged by December 31, 2021. This date is based on her contributions to the CPP.Footnote 1 [7] The Canada Pension Plan defines “severe” and “prolonged.” [8] A disability is severe if it makes an appellant incapable regularly of pursuing any substantially gainful occupation.Footnote 2 [9] 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 the Appellant is regularly able to do some kind of work that she could earn a living from, then she isn’t entitled to a disability pension. [10] 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 [11] 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. [12] The Appellant has to prove she has a severe and prolonged disability. She has to prove this on a balance of probabilities. This means she has to show it is more likely than not that she is disabled. Matter I have to consider first I accepted the documents sent in after the hearing [13] The Appellant has applied twice for a British Columbia Persons With Disabilities (PWD) Designation.Footnote 4 The first application was in August-September 2020. It was denied. The second application was in January 2021. It was successful. [14] The Tribunal file contained parts of the Appellant’s PWD applications, but they were incomplete, out of order, and hard to follow. Some pages were illegible. [15] The Appellant’s representative said the Appellant took pictures of her applications with her phone and sent them to Service Canada as email attachments. The Appellant thought Service Canada would be able to open the attachments so they would be legible, or would let her know if there was a problem. But no one contacted her. She then lost her documents. Her representative told me they couldn’t get complete copies of the applications in time for the hearing. [16] A PWD application is 24 pages long. It contains information from the applicant, a medical report, and an assessor report by a professional prescribed by regulation. I thought the Appellant’s applications likely contained important information about the Appellant’s medical condition. I asked the Appellant’s representative if she could try to get a complete, legible copy of each application. She agreed it was worth trying once more. [17] I thought it was fair to give the Appellant this extra time because of her situation. Besides her health issues, she has difficulties with housing and finances. Her representative works at a non-profit legal clinic. I recognize that agencies like this have limited time and resources. I was confident that the representative would try her best to get the documents and that there was a good chance she would be able to. [18] The Appellant filed the complete applications soon after the hearing. She included two medical letters, nursing notes, and a letter from the British Columbia government telling her they had accepted her PWD application.Footnote 5 The medical letters were already in the Tribunal file. I accepted the other documents because they were relevant to the issue I have to decide. The Minister was not prejudiced because I gave it a chance to respond, which it did.Footnote 6 Reasons for my decision [19] I find that the Appellant had a severe and prolonged disability as of December 2019. Her disability has been continuous since. [20] Here are my reasons. The Appellant’s disability is severe [21] The Appellant’s disability is severe. I reached this finding by considering several factors. I explain these factors below. The Appellant’s functional limitations affect her ability to work [22] The Appellant has PTSD, anxiety, depression, and agoraphobia (fear of certain places or situations).Footnote 7 She also has a peptic ulcer and a hiatal hernia.Footnote 8 [23] However, I don’t focus on the Appellant’s diagnoses.Footnote 9 Instead, I have to focus on whether she has functional limitations that get in the way of her earning a living.Footnote 10 I have to look at all of her medical conditions.Footnote 11 I have to consider how they affected her ability to work by December 31, 2021, and whether they continue to affect her.Footnote 12 [24] I find that the Appellant has functional limitations. They have affected her ability to work since December 2019. What the Appellant says about her functional limitations [25] The Appellant has long-standing mental health issues as a result of childhood trauma. Despite them, she was able to train to be a care aide and work in that field. She told me that her health got worse around 2009. She was in pain and had a hard time walking during and after work. [26] The Appellant believes she was misdiagnosed for the next four years. She struggled with pain. She was finally diagnosed with osteoarthritis of the right hip, and she had a hip replacement around 2014. In the meantime, dealing with the pain made her mental health worse. [27] The Appellant told me she became even more anxious and depressed in 2019. By then she was divorced. She had been wrongly accused of stealing something at work. This made her angry and she couldn’t control herself. She went on medical leave and moved to a new town to take a different job. But she soon ran into problems there that also affected her mental health. [28] It was difficult to follow the Appellant’s story after this. I don’t blame her for not being able to give a clear timeline. She described a difficult, chaotic period that isn’t completely over. She was in an abusive relationship. She was in unsafe housing and ended up living in her car and in shelters. She developed an ulcer and a hiatal hernia. [29] The exact details don’t matter. I agree with the Minister that the Appellant was able to work for many years despite her health issues. But I accept the Appellant’s evidence that, starting in early 2019, she faced significant challenges that made her health worse. She hasn’t worked since July 2019. [30] The Appellant says that her medical conditions have resulted in functional limitations that affect her ability to work. At the hearing, she said She vomits when she bends over because of her hernia and ulcer. Certain things trigger her and cause her to shake and cry. If she is away from home, she has to go back there immediately. She gets blank and foggy. She gets anxious and loses patience. She can’t control her anger. She gets depressed and can’t motivate herself to do things. She doesn’t sleep at night because she doesn’t feel safe. She has about two good days a week. On a good day, she isn’t tired and crying all day. She can go for a walk by herself. The rest of the days are bad days. She is angry all day. She sleeps and cries. She can’t plan anything, so she lives minute to minute. [31] In her application, the Appellant said she didn’t have any physical, communication, or thinking problems that limited her ability to work. She described her ability to look after herself, do housekeeping and home maintenance, answer the telephone, manage her budget, and pay bills, as “good” or “excellent.”Footnote 13 [32] But she said she had behaviour and emotional problems that limited her abilities in many ways. These included working in a team, dealing with people she didn’t know, controlling her temper, managing her anxiety, and being in public places or situations.Footnote 14 [33] The Appellant described similar limitations in her PWD applications of August-September 2020 and January 2021.Footnote 15 What the medical evidence says about the Appellant’s functional limitations [34] The Appellant must provide some medical evidence that supports that her functional limitations affected her ability to work by December 31, 2021.Footnote 16 [35] I didn’t put any weight on the fact that the Appellant’s PWD application was approved. British Columbia law doesn’t use the same criteria as the CPP to determine if a person is disabled. But the medical evidence supports what the Appellant says. In fact, it shows she had even more limitations than she recognized. [36] The Appellant had a gastroscopy in January 2020. It showed she had a peptic ulcer and hiatal hernia.Footnote 17 The Appellant didn’t mention them until her January 2021 PWD application.Footnote 18 Her family doctor of two years, Dr. Moussa, didn’t note any physical issues in her report of August 2020.Footnote 19 [37] However, K. MacNeil, the registered nurse who completed the assessor’s report for the 2020 PWD application, said the Appellant had ulcers and a hiatus (hiatal) hernia that affected eating and sleeping.Footnote 20 The social worker who completed the assessor’s report for the January 2021 PWD application said the Appellant’s ulcer caused problems with toileting. Pain from her hernia restricted her mobility.Footnote 21 [38] I accept that the Appellant has difficulties related to her ulcer and hernia. The medical evidence shows the Appellant’s limitations are mainly caused by her mental health. [39] In August 2020, Dr. Moussa reported the Appellant had “a lot of depression,” lack of interest, low mood, decreased appetite, and wasn’t sleeping well. She had been hospitalized with anxiety and depression. Dr. Moussa said the Appellant’s mood disorder affected her social functioning, because she felt anxious when communicating with people. She was also angry and stressed.Footnote 22 [40] In September 2020, Ms. MacNeil (the nurse who completed the PWD assessor’s report) gave more details of the Appellant’s limitations. These included difficulty going outside chronic anger issues and difficulty if others interjected into a conversation run-on speech that was rapid and loud at times problems with reading, concentrating, and writing because she is a “bundle of nerves” and had ADHD (attention-deficit hyperactivity disorder), and possibly hearing and vision problemsFootnote 23 [41] Ms. MacNeil noted the Appellant was afraid to go to stores or speak to employers. She was afraid she would say the wrong things and anger people. She couldn’t use public transit because of her social phobia. Her emotional and cognitive difficulties had a major impact in many areas, such as bodily functions (including sleep), attention and concentration, executive function, memory, and motivation. She had marginal functioning with her immediate social network, and very disrupted functioning (meaning overly disruptive behaviour and major social isolation) with extended social networks.Footnote 24 [42] The medical and assessor’s reports in the Appellant’s 2021 PWD application confirm that she has significant mental health concerns that make it difficult to function socially and in a work environment. Communication was a major barrier because of anxiety, anger, and stress.Footnote 25 Among other problems, she had poor hygiene, sleep disturbance, confusion, hostility, and uncontrollable anger.Footnote 26 [43] The Minister noted that in March 2021, a doctor from an urgent primary care clinic said the Appellant didn’t need a referral to a psychiatrist, gastroenterologist, or general surgeon.Footnote 27 The Minister argued that this showed the Appellant’s condition wasn’t bad enough to keep her from trying suitable work.Footnote 28 [44] I didn’t put much weight on this information. The doctor who gave it simply checked off boxes on a form. He didn’t see the Appellant. He didn’t say where he got the information. He didn’t say why the Appellant wasn’t referred to specialists. The most likely explanation is that no one at the clinic had taken responsibility for her care.Footnote 29 [45] Except for the March 2021 letter, the January 2021 reports are the latest medical evidence in the file. However, I accept the Appellant’s evidence that she hasn’t improved since then. She told me she hasn’t been able to go back to the clinic. She has recently found secure housing. But she doesn’t have a family doctor. She continues to have financial problems because of her abusive relationships. She is still anxious and can’t sleep or go outside. She is afraid to talk on the phone. She can’t go to the mental health drop-in centre. [46] The medical evidence supports that the Appellant has physical pain that affects her sleep and mobility. Its main effect is that it contributes to her mental health issues. Her mental health issues cause many limitations (described above) that affect her ability to do any type of work involving stress, energy, motivation, concentration, and social interaction. [47] Next, I will look at whether the Appellant has followed medical advice. The Appellant has followed medical advice [48] To receive a disability pension, an appellant must follow medical advice.Footnote 30 If they don’t, they must have a reasonable explanation for not doing so. If they don’t have a reasonable explanation, I must also consider what effect, if any, the medical advice might have had on their disability.Footnote 31 [49] There is nothing in the file to indicate that the Appellant hasn’t followed medical advice.Footnote 32 She has taken medication for years. Although Dr. Moussa dismissed her as a patient, it was because of the Appellant’s behaviour towards her staff.Footnote 33 This is just more evidence of the problems the Appellant has interacting with others. [50] At the hearing, it was clear to me that the Appellant will take any help she can get. She wants to get better. One problem is that she hasn’t had consistent primary care. This is because she had to move several times and because family doctors are now hard to find. Her anxiety, anger, and agoraphobia make it hard for her to get what little care is available. For example, she can’t take part in phone counselling because she has trouble talking on the phone. She can’t go to group counselling because she is afraid to go to the drop-in centre where it is offered. All she can manage is to go to the centre, collect some craft materials, and take them home to work on by herself. The Appellant can’t work in the real world [51] I now have to decide whether the Appellant can regularly do some type of work. To be severe, the Appellant’s functional limitations must prevent her from earning a living at any type of work, not just her usual job.Footnote 34 [52] When I am deciding whether the Appellant 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, and past work and life experience. 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 35 [53] I find that the Appellant can’t work in the real world. [54] The Appellant is still fairly young (53). She doesn’t have language issues. She has a community college diploma. She probably has transferable skills from her years working as a care aide. This looks good on paper. In theory, the Appellant could do some type of stress-free, part-time work from home. But to accommodate her other limitations, the job couldn’t require energy, motivation, concentration, or social interaction. Those types of jobs don’t exist in the real world. [55] I find that the Appellant’s disability was severe as of December 2019. I chose this date because of the uncertainty about why she stopped working in July 2019, and because she collected regular Employment Insurance (EI) benefits from April to November 2019.Footnote 36 To do that, she would have had to declare herself ready, willing, and able to work. [56] I accept that the Appellant’s health issues got worse in 2019. But without medical or other evidence to tell me when they left her unable to work, I have to rely on the fact that she was collecting regular EI through November 2019. The Appellant’s disability is prolonged [57] The Appellant’s disability is prolonged. [58] The Appellant hasn’t been able to work for over two years. Because of her condition and a lack of health care resources, she can’t get the medical care she needs. Even if she could, the most recent medical evidence is that she will have a lifelong impairment.Footnote 37 Her conditions will more than likely continue indefinitely. [59] I find that the Appellant’s disability was prolonged as of December 2019, when it became severe. When payments start [60] The Appellant’s disability became severe and prolonged in December 2019. [61] There is a four-month waiting period before payments start.Footnote 38 This means that payments start as of April 2020. Conclusion [62] I find that the Appellant is eligible for a CPP disability pension because her disability is severe and prolonged. [63] This means the appeal is allowed. Footnotes Footnote 1 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 GD4-16-17. Footnote 2 Section 42(2)(a) of the Canada Pension Plan gives this definition of severe disability. Footnote 3 Section 42(2)(a) of the Canada Pension Plan gives this definition of prolonged disability. Footnote 4 A person with this designation is eligible for financial and health support from the Province of British Columbia if they also meet other criteria. Footnote 5 See GD8 and GD9. Footnote 6 See GD10. Footnote 7 See GD8-11 and 19, and GD9-15. Footnote 8 See GD1-49. Footnote 9 See Ferreira v Canada (Attorney General), 2013 FCA 81. Footnote 10 See Klabouch v Canada (Attorney General), 2008 FCA 33. Footnote 11 See Bungay v Canada (Attorney General), 2011 FCA 47. Footnote 12 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 13 See GD2-71-72. Footnote 14 See GD2-71. Footnote 15 See GD8-3-5 and GD9-8-10. Footnote 16 See Warren v Canada (Attorney General), 2008 FCA 377; and Canada (Attorney General) v Dean, 2020 FC 206. Footnote 17 See GD1-49. Footnote 18 See GD9-10. Footnote 19 See GD8-10-15. Neither did the August 2020 assessor’s report. See GD8-for the A Footnote 20 See GD8-25. Footnote 21 See GD9-26. Footnote 22 See GD8-11, 14. Footnote 23 See GD8-19, 25. Footnote 24 See GD8-21-23. Footnote 25 See GD9-16, 18-20. Footnote 26 See GD9-25. Footnote 27 See GD2-9. Footnote 28 See GD4-7. Footnote 29 In January 2021, Dr. Davis (from the same clinic) said in his medical report that the Appellant wasn’t his patient. See GD9-20. Footnote 30 See Sharma v Canada (Attorney General), 2018 FCA 48. Footnote 31 See Lalonde v Canada (Minister of Human Resources Development), 2002 FCA 211. Footnote 32 See Sharma v Canada (Attorney General), 2018 FCA 48. Footnote 33 See GD1-49. Footnote 34 See Klabouch v Canada (Attorney General), 2008 FCA 33. Footnote 35 See Villani v Canada (Attorney General), 2001 FCA 248. Footnote 36 See GD2-71. Footnote 37 See GD9-18. Footnote 38 Section 69 of the Canada Pension Plan sets out this rule.