Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

[2] The Appellant, R. W., 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 47 years old high school graduate.

[4] The Appellant worked in construction prior to 2012. She was a full-time hydro excavation truck operator from Sept 2012 to June 2016. She then worked as a part-time fish cutter from September 2017 to April 2018. She was a full-time personal care assistant from June 2018 to October 2019. Afterwards, she worked as a cashier at a convenience store from September 2020 until January 5, 2022. She started with part-time hours, but transitioned to full-time.

[5] The Appellant is currently working full-time as a receptionist at a hearing aid company. She started on January 6, 2022, and is on a nine months contract.

[6] The Appellant applied for a CPP disability pension on February 17, 2020. 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.

[7] The Appellant argues that she had a severe and prolonged disability. She argues that her back and leg pain made it difficult for her to work.

[8] The Minister argues that the Appellant had not proven she had a severe and prolonged disability. In support of its position, the Minister cites the Appellant’s work in 2020 and 2021.

What the Appellant must prove

[9] For the Appellant to succeed, she must prove she had a disability that was severe and prolonged by her Minimum Qualification Period (MQP) of December 31, 2021.^{Footnote 1} This date is based on her contributions to the CPP.

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

[11] A disability was severe if it made an Appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

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

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

[14] 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.

[15] The Appellant has to prove she had 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 was disabled.

Reasons for my decision

[16] The Appellant hasn’t proven she had a severe and prolonged disability by her MQP date of December 31, 2021.

The Appellant’s disability wasn’t severe

[17] I find that the Appellant’s disability wasn’t severe. I base this on several factors. I explain these factors below.

The Appellant testified that she had functional limitations

[18] The Appellant had a herniated disc with residual sensory deficit and chronic back pain. However, I can’t focus on the Appellant’s diagnose.^{Footnote 4} Instead, I must focus on whether she had resulting functional limitations that got in the way of her earning a living.^{Footnote 5} 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 6}

[19] I find the Appellant’s testimony sincere.

[20] At the hearing, the Appellant said that she had functional limitations that affected her ability to work in the following ways:

• She had back, leg, and foot pain.
• She had a hard time getting out of bed.
• She had difficulty standing.
• She could not walk more than 200 feet before stopping to rest.
• She could not lift weights with her arms.
• She could only sit for 15 to 20 minutes before needing to get up and walk around.

The medical evidence supports the Appellant’s testimony

[21] The Appellant must provide medical evidence that her functional limitations affected her ability to work by the MQP date.^{Footnote 7}

[22] I find that the Appellant’s functional limitations affected her ability to work by the MQP date.

[23] The medical evidence supports the Appellant’s testimony.

[24] On January 29, 2020, M. Emberton, a physical therapist, noted the following limitations:^{Footnote 8}

• sitting tolerance of 35 minutes before needing a break
• standing tolerance of 48 minutes
• unable to walk for more than seven minutes due to pain
• inability to lift six pounds above her shoulder
• difficulty bending due to pain

[25] On July 3, 2020, Dr. Godec, the family doctor, noted chronic back pain and sensory deficit down her left leg.^{Footnote 9}

The Appellant has followed medical advice

[26] To receive a disability pension, an Appellant must follow medical advice.^{Footnote 10} If an Appellant doesn’t follow medical advice, then they 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 11}

[27] The Appellant has followed medical advice. At the hearing, she said that she complied with the following treatments:

• She was prescribed medication for pain.^{Footnote 12} This included Amitriptyline, Pregabalin, Cyclobenzaprine, Acetaminophen, Oxycodone/Paracetamol, and Ketorolac. These medications reduced her back pain, but not the nerve pain in her left leg.
• She had back surgery in May 2014 to relieve compressed nerves.^{Footnote 13} The surgery initially decreased her back pain, but the pain later returned.
• She tried physiotherapy in 2014, but stopped because there wasn’t any benefit.^{Footnote 14}
• She attended sessions with a chiropractor in 2019, but stopped because of limited improvement.

[28] Although the Appellant got some relief, I find that her medical condition haven’t resolved with treatment.

The Appellant could work in the real world

[29] For her disability 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 15}

[30] When I am deciding whether the Appellant could work, I can’t just look at her medical condition and how they affected what she could do. I must also consider factors such as her:

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

[31] These factors help me decide whether the Appellant could work in the real world and whether it is realistic to say that she could work.^{Footnote 16}

[32] I find that the Appellant could work in the real world. I base this on the following factors:

• Although she didn’t have post-secondary education, this didn’t outweigh other personal factors that show work capacity.
• She was 47 years old at the MQP date and wasn’t close to retirement age.
• She had no communication issues and was able to express herself clearly.
• She had transferable skills from a varied and lengthy employment history as a truck operator, fish cutter, personal care assistant, cashier, and receptionist.

[33] The Appellant’s ability to work in the real world is further supported by M. Emberton’s January 29, 2020, report. In this report, M. Emberton noted that she had capacity for a four hour workday in lighter or sedentary work.^{Footnote 17}

[34] M. Emberton’s opinion is consistent with the Appellant’s actions, which also showed work capacity by and after the MQP date. Despite functional limitations, she was able to work as a cashier and receptionist. She maintained a schedule and attended work on a predictable basis.

The Appellant’s medical condition didn’t get in the way of her earning a living

[35] If the Appellant could work in the real world, she must show that she tried to find and keep a job. She must also that show her efforts weren’t successful because of her medical condition.^{Footnote 18} Finding and keeping a job includes retraining or looking for a job that accommodates her functional limitations.

[36] I am sympathetic to the Appellant’s situation and I acknowledge that she was in pain. She made efforts to work, but unfortunately her efforts didn’t show that her medical condition got in the way of her earning a living. I base this finding on the following reasons:

• She was able to work as a cashier with accommodations from September 2020 until January 5, 2022. She testified that she was in pain, but was able to do her assigned light duties. She mainly stood behind the cash register and occasionally bend down to get cigarettes for customers. She did some paperwork. The former employer allowed her to avoid physical tasks such as cleaning or taking out garbage.
• The former employer wasn’t benevolent. Her physical limitations were accommodated, but these accommodations didn’t go beyond what is required of an employer in the competitive workplace.^{Footnote 19}
• She is currently working as a full-time receptionist. She testified that she is able to work sitting down and manages pain with Oxycodone/Paracetamol. 

[37] For the Appellant to prove she had severe disability, her limitations must prevent her from earning a living at any type of work by the MQP date.^{Footnote 20} The fact that she continued working on and past the MQP date of December 31, 2021, shows that her limitations didn’t prevent her from earning a living.

[38] Therefore, I can’t find that the Appellant had a severe disability by the MQP date.

[39] At the hearing, the Appellant expressed concern that her medical condition may deteriorate in the future and prevent her from working. If this occurs, she has the option to re-apply for a CPP disability pension.

Conclusion

[40] I find that the Appellant isn’t eligible for a CPP disability pension because her disability wasn’t severe. Since I found that her disability wasn’t severe, I don’t have to consider whether it was prolonged.

[41] This means the appeal is dismissed.