Canada Pension Plan (CPP) disability

Reasons and Decision

Overview

[1] The Respondent received the Appellant’s application for a Canada Pension Plan (CPP) disability pension on August 7, 2014. The Appellant claimed that he was disabled because of multiple illnesses. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).

[2] To be eligible for a CPP disability pension, the Appellant must meet the requirements that are set out in the CPP. More specifically, the Appellant must be found disabled as defined in the CPP on or before the end of the minimum qualifying period (MQP). The calculation of the MQP is based on the Appellant’s contributions to the CPP. The Tribunal finds the Appellant’s MQP to be December 31, 2000.

[3] This appeal was heard by teleconference for the following reasons:

1. The method of proceeding provides for the accommodations required by the parties or participants.
2. There are gaps in the information in the file and/or a need for clarification.
3. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

[4] The following people attended the hearing:

• W. C., the Appellant

[5] The Tribunal has decided that the Appellant is not eligible for a CPP disability pension for the reasons set out below.

Evidence

[6] The Appellant was 43 years old when he last qualified for disability benefits. He is now 60 years old. He has a high school education with apprentice training as an auto body mechanic. According to his CPP Questionnaire, he last worked from September 2013 until November 2013 as a carpenter. He reported that he stopped work due to an inability to do heavy lifting, set up scaffolding and climb. He also said he had stress-related problems. He reported working as a labourer from June to September 2012. While working, his supervisor tried to assign him easier jobs.

Oral testimony from the hearing

[7] The Appellant told the Tribunal he worked for a while as an auto body mechanic although he was never certified. The dust fumes affected his health. As well, the physical nature of the job hurt his back so he stopped working as a mechanic.

[8] He was not exactly certain of the date he hurt his back. About thirty years ago, he recalled working on a project that helped people in his community earn enough hours to qualify for Employment Insurance (EI). He stated that proper safety equipment was not always available on these short-term jobs. He hurt his back lifting. His back has deteriorated with age.

[9] He tried working as a carpenter. As his back got worse, he found it harder to work. Part of his job involved roofing and labourer work, which was difficult.

[10] He saw his doctor who ordered x-rays which showed degeneration. By the late 1990s, the Appellant stated that he could not find any work that he could do. He stayed home with his children until they started school as his wife had a job and they could not afford to hire a babysitter. He looked after the meals and household chores.

[11] When his youngest child went to school, the Appellant tried again to work. At his relatively young age, he had trouble accepting that he could no longer work. The Appellant took seasonal jobs whenever he could. A friend gave him a job in 2010 in construction. He was assigned the easier tasks. The rest of the crew had to work harder as a result. He had planned not to return the following year, but the company shutdown due to a lack of work.

[12] He tried to work in 2012 and 2013 as a labourer laying shingles. He also found that work difficult.

[13] There is no light work in his small community. He does not have a car to drive to places where light work might be available. Right now, in his current condition, he does not think there would be anything he could do. He is in poor physical shape with liver disease and failing kidneys in addition to his back pain. He has back pain whenever he is awake. Sometimes it is unbearable. X-rays have shown spina bifida occulta, which may be related to his weak back.

[14] The Appellant stated that he tried a few times to get funding for retraining but could not get help. The nearest place to offer training is St. John’s. He does not have the funds to register for school or the transportation to travel to school.

[15] Back in 2000, he had gallbladder surgery. Prior to the surgery he had nausea and burning pain. Those symptoms resolved with surgery, but overall he did not feel much better. He also had kidney stones that year. He stated that he is prone to kidney stones. He has a large stone embedded in kidney which causes frequent urinary tract infections.

[16] At some point in the distant past he was diagnosed with a chemical imbalance in his brain. It was not the reason he stopped work, but it could be why he has trouble remembering dates. His former doctor’s medical records were burned in a fire. He does not think he could access any earlier medical records as a result.

CPP medical report and questionnaire

[17] On his CPP Medical Report dated July 9, 2014, Dr. Humber, the Appellant’s family physician of more than twenty years, diagnosed the Appellant with:

• Hemochromatosis
• Hepatomegaly
• Seizures
• Alcoholic hepatitis
• Degenerative disc disease of the cervical and lumbar spine

[18] He wrote that he began treating the Appellant for his main condition in May 2007 or 2009 (his handwriting is not clear). The Appellant was described as having chronic recurrent back, shoulder and leg pain. He had a tremulous gait and arm/leg movements, a jaundiced appearance and was unable to stay focused in conversation. He was being followed by specialists for cirrhosis of the liver. His treatment included abstinence from alcohol. His condition was expected to deteriorate (GD2—159 to 162).

[19] In addition to the information reported by his doctor, the Appellant reported on his CPP Questionnaire date stamped August 7, 2014 that he had side effects from medication and fatigue. He had abnormal blood sugars. He reported sitting, standing, walking, lifting, carrying, reaching and bending limitations. He needed help getting out of the bath tub. He was prone to kidney stones and urinary infections. He could do little household maintenance. He reported short-term memory and concentration problems. His sleep was affected by back pain. His allergies affected his breathing. He required stretching breaks while driving to relieve his back pain. He was taking Ursodiol (gallstones), Aldactone (diuretic), Propranolol (blood pressure), Rabeprazole (GERD), Flurbiprofen (anti-inflammatory), folic acid and vitamin B. He tried physiotherapy. He used a cane, a back brace and a heating pad (GD2—175 to 181).

Supplementary reports

[20] The Tribunal has reviewed all the medical reports and supplementary documents. Those that address the Appellant’s capacity to work and medical conditions relevant to the appeal are summarized below.

Dr. Humber, family doctor

[21] In February 2016, Dr. Humber wrote to the Respondent to confirm that the Appellant had health conditions at the time of his MQP. Prior to 2000, the Appellant had problems relating to a sliding hiatal hernia with gastro-oesophageal reflux; known spina bifida occulta at S1; and known degenerative disc disease lumbar spine specifically L3-L4 and L4-L5. The Appellant had many physical complaints before and after 2000. Taking care of his medical condition was a “full time job for him”. While employed in 2010, Dr. Humber described the Appellant’s employment as follows, “… some socially minded employer must have provided him some temporary gainful employment although I doubt that [the Appellant] was capable of providing a good days work” (GD2—56 to 57).

[22] The file contains handwritten office notes from Dr. Humber dated January 1999 until 2015. His office notes confirm complaints of persistent low back pain. In January 1999, x-rays of the cervical and lumbosacral spines showed no abnormalities but found spina bifida occulta at S1. He was referred to an orthopedic surgeon in 1999 although the report was not on file. In May 1999, the Appellant was documented to have had sudden pain and back spasms from lifting a pallet at work. An x-ray of the lumbar spine showed degenerative disc disease at L3-L4, L4-L5 with no narrowing of the disc spaces. Spina bifida occulta at S1 was again noted (GD2—89). In June 1999, his lower back pain was said to be much improved and he was back to work (GD2—59). In March 2000, he had complaints of thoracic spine pain, for which x-rays showed degenerative disc disease without narrowing (GD1—8). He reported ongoing symptoms of GERD. In April 2000, he had a laparoscopic cholecystectomy for chronic cholecystitis. In April and October 2000, he was assessed for kidney stones. Ultrasounds showed that his kidneys were normal in size and texture (GD2—90, 91).

[23] Post-MQP visits address liver cysts, alcoholism, cirrhosis, arthritis, bursitis of the right elbow, depression and other ailments. In February 2001, Dr. Humber prepared a “note for work” for February 15 and 16 due to a persistent cough (GD2—64). At the hearing, the Appellant thought the note may have been for the time he tried to work a crab plant. He could not do the job due to his bad back and the damp working conditions. In August 2001, Dr. Humber wrote that they discussed arthritis, exercise, lifting and work experience (GD2—65). In August 2002, Dr. Humber wrote that the Appellant “works at body work” (GD2—66). X-rays of the lumbar spine from January 2008 showed no significant degenerative disc disease changes except for slightly decreased disc spacing at L3-L4 (GD2—118). In November 2009, x-rays of the lumbar spine showed narrowing of the disc space at L3-L4 consistent with degenerative disc disease (GD2—117). Office visits in May, June and August 2010, the months the Appellant held a seasonal job, do not document complaints of back pain (GD2—131). A CT scan of the abdomen from September 2010 showed no evidence of cirrhosis or hepatomegaly (GD2—114 to 115). In July 2011, an ultrasound of the abdomen noted alcohol hepatitis (GD2—163). In January 2012, the Appellant appeared jaundiced at an office visit (GD2—133). In May 2012, Dr. Humber wrote that the Appellant’s back pain prevented him from doing his job (GD2—134). In August 2012, the Appellant was documented to have had nausea all day at work (GD2—135). In February 2013, the Appellant was seen by a gastroenterologist who advised him to abstain from alcohol to prevent further liver disease deterioration (GD2—171). X-rays of the cervical spine from August 2013 showed grade 1 anterior spondylolisthesis at C5-C6 with mild degenerative changes (GD2—97). An abdominal ultrasound from November 2013 showed fatty infiltration of the liver and cirrhosis (GD2—173). Diagnostic imagine of the lumbar spine from April 2016 showed moderate to extensive loss of disc space at L3-4 with mild endplate changes. At L4-L5, there was moderate disc space loss with a vacuum phenomenon. There may also be narrowing of the neural foramen distally (GD3—3).

Employer questionnaire

[24] The Appellant worked as a labourer from April until September 2010. His employer completed a questionnaire at the request of the Respondent. He was responsible for cleaning tools, cutting brush and shovelling stone. The work was seasonal. His attendance was good. He did not have absences for medical reasons. He did not need assistance from his co-workers. He did what was asked of him at his own pace. He stopped working due to a shortage of work. The company closed in October 2011 due to a shortage of work in the area (GD2—148 to 150).

Record of earnings

[25] The Appellant’s record of earnings documents income from 1978 to 1981 and 1983 to 1992. In 1994 and 1997 he had income below the year’s basic exemption. In 1998, he made enough income to contribute to the CPP for the year. He had income below the year’s basic exemption in 1999 and 2000. His record of earnings showed no income between 2001 and 2009. In 2010, he made enough income to contribute to the CPP. There was no income in 2011. In 2012, his income was below the year’s basic exemption. No further income was recorded (GD2—41).

Submissions

[26] The Tribunal has reviewed the letters the Appellant submitted explaining why he believes he qualifies for disability benefits. He argued:

1. Despite being told he could not work, he tried his best to re-enter the workforce; he took a job with a friend who knew about his medical conditions and agreed to provide him with light work. He was only able to work for one season.
2. From 1993 until 2000, he took over the childcare responsibilities within the family to cut expenses.
3. In 2000, at age 43, he did not apply for disability because he had hoped to work again. He feels that had he applied earlier, he would have been successful; he is being punished for trying to work again.
4. His condition will not improve; he needs help with bathing and dressing.

[27] In its Submissions of the Minister dated August 2, 2017 (GD7—2 to 10), the Respondent submitted that the Appellant does not qualify for a disability benefit because:

1. According to Dr. Humber’s report dated July 9, 2014, treatment of the main medical condition began in May 2009, namely hemochromatosis, hepatomegaly and alcoholic hepatitis resulting in seizures as well as degenerative disc disease of the cervical and lumbar spine. This is well past the MQP of December 2000.
2. While the Appellant may not have been able to do heavy physical work, it should be demonstrated that a claimant suffers from a disability which in a “real world” sense, renders him incapable regularly of pursuing any substantially gainful occupation. The Appellant was only 43 years old at his MQP with high school education and some post-secondary training. In the absence of any severe pathology or learning disability, it is not an unreasonable expectation that he could have upgraded and/or retrained for suitable work within his limitations.
3. It is acknowledged that the Appellant was treated for low back pain and other minor conditions in 2000, however; there was no severely disabling pathology, treatment or follow-up identified that would have interfered with appropriate employment.
4. Limitations as a result of the Appellant’s liver condition are not relevant to the issue under dispute since he did not begin eliciting symptoms until 2009, well after he last qualified with valid earnings in December 2000.
5. Moreover, the Appellant has evidence of work capacity in 2010, and a reported date stopped work in November 2013 and a claim date of August 2013, all after his MQP of December 2000. As such, it is the Minister’s position that the Appellant has not established a severe and prolonged disability by the expiry of his MQP in December 2000, which precludes a finding of disability.

Analysis

Test for a disability pension

[28] The Appellant must prove on a balance of probabilities, or that it is more likely than not, that he was disabled as defined in the CPP on or before the end of the MQP.

[29] Paragraph 44 (1) (b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must:

1. a) be under 65 years of age;
2. b) not be in receipt of the CPP retirement pension;
3. c) be disabled; and
4. d) have made valid contributions to the CPP for not less than the MQP.

[30] Paragraph 42 (2) (a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or she is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.

Severe

[31] The Tribunal considered the evidence from the file and from the hearing. The challenge for the Appellant is that his MQP expired as of December 31, 2000, almost 17 years ago. While the medical information and diagnostic reports document more recent health problems, the evidence does not show that his condition was severe as defined within the CPP when he last qualified for benefits.

[32] When Dr. Humber completed the Appellant’s CPP Medical Report in 2014, he indicated that the Appellant could not work due to hemochromatosis, hepatomegaly, seizures, alcoholic hepatitis and degenerative disc disease of the cervical and lumbar spine. The file documents, however, that the only condition among those diagnoses that the Appellant had at his MQP was degenerative disc disease of the lumbar spine. Dr. Humber clarified the Appellant’s conditions within his MQP in a letter dated February 2016 indicating that the Appellant had a sliding hiatal hernia with gastro-oesophageal reflux; known spina bifida occulta at S1; and known degenerative disc disease of the lumbar spine specifically at L3-L4 and L4-L5. The Tribunal acknowledges these conditions; however, the mere existence of these conditions does not establish a severe disability. Dr. Humber has offered no evidence of how these conditions would have prevented the Appellant from obtaining suitable employment at the time. As such, the Tribunal was not persuaded by Dr. Humber’s opinion as stated in his letter written 16 years after the Appellant last qualified for benefits.

[33] The Tribunal looked for evidence of a severe condition in Dr. Humber’s office notes. His notes appear to indicate that the Appellant was referred to an orthopedic surgeon in 1999; however, there is no evidence that he required further treatment or investigation for his back pain. The Tribunal acknowledges that Dr. Humber is supportive of the Appellant’s application. It also accepts Dr. Humber’s suggestion that managing his health was a “full-time job” in 2000 as the Appellant required numerous office visits for repeated complaints of GERD pain followed by gallbladder surgery and complications with his wound post-surgery. He was also investigated for kidney stones. However, these conditions would not render the Appellant severe within the CPP even when factored into the totality of his health condition.

[34] Dr. Humber also indicated that the Appellant’s employment in 2010 was benevolent noting that he was likely hired by a “socially minded employer”. However, the questionnaire completed by the employer indicated that the Appellant was productively employed. While he may have been restricted to light work, he was nonetheless able to do the work asked of him for the duration of the season. Moreover, office notes from Dr. Humber from the time of his employment do not show an exacerbation of his symptoms despite the fact that the Appellant was performing duties such as cleaning tools, cutting brush and shovelling stone. As such, the Tribunal finds that the Appellant had evidence of ongoing work capacity post-MQP.

[35] Unfortunately for the Appellant, socio-economic factors such as labour market conditions are not relevant in the determination of whether a person is disabled within the meaning of the CPP (Canada (MHRD) v. Rice, 2002 FCA 47). The Tribunal understands that he could not find light work in his community. As well, he could not access retraining programs locally. The family had one car, which his wife needed to drive to work. He was taking care of the household and children to save on babysitting expenses. He vaguely recalled a diagnosis at some point in the past about a condition that potentially affected his memory; however, the Appellant had no supporting evidence of such a condition. At 43 years old and as a high school graduate, the Tribunal finds that he could have reasonably attempted to retrain within a “real world context”.

[36] Accordingly, the evidence does not show that the Appellant’s disability was severe when he last qualified for the CPP disability benefit on December 31, 2000.

Prolonged

[37] As the Tribunal found that the disability was not severe, it is not necessary to make a finding on the prolonged criterion.

Conclusion

[38] The appeal is dismissed.