Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

[2] The Appellant, W. D., 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 44 years old. He was walking to his warehouse job on December 5, 2017, when he was struck by a vehicle. He never returned to work after that. He says that he can’t work because of depression, anxiety, post-traumatic stress disorder (PTSD), and widespread chronic pain. He also has trouble sleeping.

[4] The Appellant applied for a CPP disability pension on July 26, 2019. The Minister of Employment and Social Development (Minister) refused his application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Appellant says that his mental and physical disabilities keep him from being able to work.

[6] The Minister says that medical testing doesn’t explain his physical symptoms, and he didn’t follow medical advice.

[7] I agree with the Minister that the Appellant didn’t follow medical advice. It was unreasonable for him not to follow the advice. Following the advice might have made a difference to his disability. So he isn’t entitled to a disability pension.

What the Appellant must prove

[8] For the Appellant to succeed, he must prove he has a disability that was severe and prolonged by December 31, 2019. This date is based on his contributions to the CPP.^{Footnote 1}

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

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

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

[12] 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}

[13] 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.

[14] The Appellant must prove that he has a severe and prolonged disability. He must prove this on a balance of probabilities. This means he must show that it is more likely than not he is disabled.

Matters I have to consider first

The Appellant wasn’t at the hearing

[15] A hearing can go ahead without the Appellant if he got the notice of hearing.^{Footnote 4} I decided that the Appellant got the notice of hearing because the Tribunal emailed the notice of hearing to him on February 4, 2022. Emails are deemed to be received the business day after they are sent.^{Footnote 5} This means the Appellant is deemed to have received the notice of hearing on February 7, 2022. Tribunal staff tried to contact the Appellant during the scheduled hearing time, but they were unsuccessful. So the hearing took place when it was scheduled, but without the Appellant. The Appellant didn’t contact the Tribunal after the hearing, to explain why he missed the hearing.

Reasons for my decision

[16] I find that the Appellant hasn’t proven he had a severe and prolonged disability by December 31, 2019.

Was the Appellant’s disability severe?

[17] The Appellant’s disability wasn’t severe by December 31, 2019. I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations affected his ability to work

[18] The Appellant has depression, anxiety, PTSD, and widespread chronic pain. He also has trouble sleeping. However, I can’t focus on the Appellant’s diagnoses.^{Footnote 6} Instead, I must focus on whether he has functional limitations that got in the way of him earning a living by December 31, 2019.^{Footnote 7} When I do this, I must look at all of the Appellant’s medical conditions (not just the main one) and think about how they affected his ability to work.^{Footnote 8}

[19] I find that the Appellant had functional limitations by December 31, 2019.

What the Appellant says about his functional limitations

[20] The Appellant says that his medical conditions have resulted in functional limitations that affected his ability to work by December 31, 2019.

[21] Because of his mental health conditions, he says that:

• he is emotional and irritable
• he avoids social situations—he generally stays home

[22] Because of widespread chronic pain, he says that:

• he can only stand for 10 minutes, and he has to use a cane
• he holds onto handles or sits down while showering
• he can’t walk very far
• he can’t kneel, squat, bend, push or pull
• he has pain while sitting
• he no longer goes for walks or does yardwork or housework
• he only gets up to four hours of sleep per night

[23] He added that his medications for pain and sleep make him “drowsy, spacey, and nauseated,” which affects his ability to think clearly and concentrate.^{Footnote 9}

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

[24] The Appellant must provide medical evidence that shows that his functional limitations affected his ability to work by December 31, 2019.^{Footnote 10}

[25] The medical evidence supports most of what the Appellant says.

[26] Regarding his mental health conditions, his family doctor (Dr. Shakkeela Kunjummar) described him as being anxious and depressed since the accident. This affects his mood, concentration, and energy. He doesn’t leave the house often.^{Footnote 11}

[27] A psychologist, Dr. David Direnfeld, did an independent medical exam of the Appellant for the Appellant’s insurer in June 2019. Dr. Direnfeld diagnosed the Appellant with PTSD. He observed that the Appellant was emotional. He accepted the Appellant’s reports of having angry outbursts and avoiding social situations.^{Footnote 12}

[28] Regarding chronic pain, Dr. Kunjummar said that the Appellant had longstanding back pain, even before his accident. The pain radiates to his legs. Dr. Kunjummar’s notes and Dr. Direnfeld’s report support that:

• the Appellant has pain while standing, and uses a cane
• he needs help getting into the shower
• he can’t walk very far
• he no longer does housework
• he only gets up to four hours of sleep per night
• he should avoid frequent back movements and lifting over 10 kilograms

[29] However, there is no medical evidence that the Appellant had trouble kneeling, squatting, bending, pushing or pulling. None of the Appellant’s healthcare providers mentioned the Appellant having trouble sitting. Dr. Direnfeld’s assessment lasted nearly three hours. During that time, Dr. Direnfeld didn’t observe the Appellant to be in any pain while sitting.^{Footnote 13}

[30] The Minister says that the Appellant’s medical testing doesn’t explain his physical symptoms. One test showed mild lumbar stenosis (narrowing of his lower spine). But imaging of his head, right knee, right hip, chest, abdomen, and pelvis didn’t show anything wrong.^{Footnote 14}

[31] I acknowledge the Minister’s argument. However, the Appellant’s healthcare providers accepted that he experiences pain and some functional limitations. So do I.

[32] In summary, I find that by December 31, 2019, the Appellant:

• was emotional and irritable
• avoided social situations
• had limitations with standing, walking, lifting, and frequent back movements
• had trouble concentrating
• was fatigued due to poor sleep

[33] The medical evidence supports that the Appellant’s functional conditions prevented him from doing his warehouse job by December 31, 2019. That job required him to frequently lift heavy objects, be on his feet, and drive a forklift. I believe that his fatigue, lack of concentration, and limitations with standing, walking, and lifting would have made these tasks very difficult and possibly unsafe. He would have also had to leave his house to work at the warehouse. Leaving his house made him anxious.^{Footnote 15}

[34] Next, I will look at whether the Appellant followed medical advice.

The Appellant hasn’t followed medical advice

[35] To receive a disability pension, a claimant must follow medical advice.^{Footnote 16} If a claimant 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 the claimant’s disability.^{Footnote 17}

[36] The Appellant hasn’t followed all medical advice. He didn’t give a reasonable explanation for not following the advice.

[37] On March 2, 2019, Dr. Kunjummar referred the Appellant to a pain clinic. The pain clinic tried calling the Appellant on March 8, March 21, and April 5, 2019. On April 18, 2019, the pain clinic wrote to Dr. Kunjummar that they had been unsuccessful in arranging an appointment with the Appellant.^{Footnote 18} The Appellant didn’t give any explanation why he didn’t follow Dr. Kunjummar’s medical advice.

[38] I must now consider whether following this medical advice might have affected the Appellant’s disability.

Following the medical advice might have made a difference

[39] I find that following the medical advice might have made a difference to the Appellant’s chronic pain. By the time Dr. Kunjummar recommended the pain clinic, the Appellant had already tried physiotherapy, chiropractic treatment, and various medications.^{Footnote 19} Evidently, Dr. Kunjummar believed that a pain clinic could still help the Appellant. Otherwise, she would not have made the referral.

[40] I find that following the medical advice might have made a difference to the Appellant’s poor sleep. The Appellant said that he can’t sleep because of his pain.^{Footnote 20} So if his pain had improved, his sleep should also have improved.

[41] In addition, the Appellant was referred to a sleep disorders centre for a sleep study in April 2014, but they were unable to contact him.^{Footnote 21} The Appellant didn’t give any explanation why he didn’t do the sleep study. Dr. Kunjummar suggested a sleep study again in February 2015, but there is no record that one was done.^{Footnote 22}

[42] I find that following the medical advice might have made a difference to the Appellant’s mental health. Dr. Scherer (a rehabilitation and vocational psychologist) assessed the Appellant on July 28 and 29, 2020, to see how his medical conditions affected his ability to work.^{Footnote 23} In his report, he said that chronic pain contributes to depression. He concluded that both conditions together “are often associated with greater disability than either condition on its own.”^{Footnote 24} So if his chronic pain had improved, his depression would likely have improved as well.

The Appellant’s anxiety and PTSD aren’t prolonged

[43] The only medical conditions that probably would not have been improved by the pain clinic are anxiety and PTSD. Although the Appellant had been diagnosed with anxiety and PTSD in 2019, I find that these conditions no longer result in functional limitations that would interfere with the Appellant’s ability to work. In other words, they are not prolonged.^{Footnote 25} I make this finding for the following four reasons.

[44] First, Dr. Direnfeld predicted that the Appellant had not reached maximum recovery from PTSD in his June 2019 report. He recommended that the Appellant do cognitive behavioural therapy with a psychologist.^{Footnote 26} The Appellant saw Dr. Joyce Weinberg from August 2019 until at least February 2020 for this purpose. I find it likely that the Appellant’s anxiety and PTSD would have improved since Dr. Direnfeld’s diagnosis as a result of this treatment.

[45] Dr. Weinberg wrote in February 2020 that she didn’t “see how he could possibly work in his current condition.” However, she didn’t explain why.^{Footnote 27} The Appellant didn’t provide any other documents from Dr. Weinberg that would help me understand the basis for Dr. Weinberg’s opinion—that is, whether it was based on the Appellant’s pain, poor sleep, depression, anxiety or PTSD.

[46] Second, the Appellant went to the hospital in December 2019 because he was uncontrollably emotional. At the hospital, Dr. Cesar Garcia (a psychiatrist) assessed him as having depression. He noted that PTSD should be ruled out. Dr. Garcia’s colleague, Dr. Gaurav Mehta (also a psychiatrist), saw the Appellant in June and August 2020. His conclusion was that the Appellant had depression. He didn’t mention anxiety or PTSD in his diagnosis.^{Footnote 28}

[47] Third, Dr. Scherer’s August 2020 report is thorough and detailed. He based it on a two-day assessment of the Appellant in July 2020 and a review of his medical history. He was aware of the Appellant’s experience with PTSD. However, his final diagnosis was “Major Depressive Disorder with Anxious Distress.”^{Footnote 29}

[48] Fourth, Dr. Kunjummar’s office notes mention anxiety many times between December 2017 and December 2019. But they don’t mention anxiety at all after February 2020—including after Dr. Scherer’s report. Her notes end in June 2021. The Appellant saw Dr. Kunjummar often during this period. If anxiety was still a significant factor for the Appellant, I believe Dr. Kunjummar’s notes would have mentioned it. Instead, her notes focused on the Appellant’s mood, which she generally described as stable.^{Footnote 30}

[49] When I am deciding whether a disability is severe, I usually have to consider a claimant’s personal characteristics. This allows me to realistically assess a claimant’s ability to work.^{Footnote 31}

[50] I don’t have to do that here because the Appellant didn’t follow all medical advice and didn’t give a reasonable explanation for not following the advice. Following the advice might have made a difference to his chronic pain, poor sleep, and depression. It probably would not have impacted his anxiety or PTSD. But I find that these conditions no longer cause functional limitations that would interfere with the Appellant’s ability to work.

[51] This means he didn’t prove that his disability was severe and prolonged by December 31, 2019.^{Footnote 32}

Conclusion

[52] I find that the Appellant isn’t eligible for a CPP disability pension because his disability wasn’t severe and prolonged by December 31, 2019.

[53] This means the appeal is dismissed.