Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not eligible for a Canada Pension Plan (CPP) disability pension.

Overview

[2] The Claimant was 47 years old when she applied for the CPP disability pension in April 2017. She had worked as a cashier at a X store, and stated that she had been unable to work since September 2016 because of chronic pain and sleep apnea. At the hearing, she also stated that she suffered from depression.

[3] The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

[4] For the purposes of the CPP, a disability is a physical or mental impairment that is severe and prolonged.^{Footnote 1} A disability is severe if it causes a person to be 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.

[5] For the Claimant to succeed, she must prove that it is more likely than not that she became disabled by the end of her Minimum Qualifying Period (MQP). Her MQP is based on her contributions to the CPP.^{Footnote 2} It ended on December 31, 2018.

Issues

• Did the Claimant’s health conditions result in her having a severe disability, so that she was incapable regularly of pursuing any substantially gainful occupation by December 31, 2018?
• If so, was her disability long continued and of indefinite duration by that date?

Analysis

Severe disability

The Claimant maintains that she is severely disabled

[6] The Claimant explained how she saw her medical condition:

• Her pain started between her shoulder blades, then spread to her shoulders and arms, then down her back. Now it also affects her low back and knees;
• The pain continues to get worse;
• The pain in her back and neck is 7/10 with medication, where 10 is the greatest pain imaginable;
• The intensity of her pain is unpredictable;
• She has trouble sleeping;
• She was diagnosed with depression in 2015 and was on medication for it then; and
• Her depression is getting worse.

[7] The Claimant testified that she a surgeon for her carpal tunnel syndrome. The surgeon explained that her condition was mild and she was not a candidate for surgery. She also acknowledged that her headaches have improved with medication.

[8] The Claimant also explained how she saw the impact of her health conditions on her activities of daily living:

• Her neck pain means that she is unable to bend, lift her arms, and carry heavy things;
• She is unable to walk and stand for prolonged periods;
• Back pain means that she can sit for only half an hour;
• She stays home all day staring at the television screen or window;
• She cooks only prepared foods, does not do laundry every day, cleans her home only when she is able, and does grocery shopping as infrequently as possible;
• Her children unload the groceries from the car; and
• She was unable to explain any limitations her depression might have on her functional abilities.

The medical evidence fails to support the Claimant’s account

Physical conditions

[9] Imaging reports showed that the Claimant had only mild early degenerative disc disease throughout the thoracic spine and down the lumbar spine to L4.^{Footnote 3} In addition, at C5-6 of the cervical spine she had a small broad-based disc protrusion with probably tiny underlying osteophytes.^{Footnote 4} An EMG and nerve conduction study in March 2017 showed minimal right sensory carpal tunnel syndrome.^{Footnote 5}

[10] Several specialists stated that the Claimant had mechanical back pain.^{Footnote 6} The staff at the pain clinic she attended also endorsed this diagnosis.^{Footnote 7}

[11] In September 2017, Dr. Arshat stated that the Claimant’s physical conditions were as follows: right shoulder girdle myofacial pain, prolonged and severe; pain in her right trapezius, paraspinal, and scapular muscles; and neck pain. The pain was accompanied by continuous very unpleasant general fatigue. It burned like an electric shock with unusual sensations such as pins and needles. It affected her sleep and gave her severe headaches. She had trouble concentrating. She also suffered from prolonged depression.^{Footnote 8}

[12] While Dr. Arshat was very supportive of the Claimant, the persuasiveness of his account was seriously undercut by his answer to one of the questions on the provincial disability form. He checked the box indicating that the Claimant had “severe” symptoms of pain amplification. This observation should be seen in the context of the report in March 2018 of Dr. Mark Matsos, rheumatologist. His findings on physical examination fail to support the Claimant’s testimony about the extent of her pain. He reported that she had tenderness on palpation over the C3-T7 area of her cervicothoracic spine. However, she had a full range of motion:

• in her back with only mild pain on lateral flexion;
• in her neck, without pain; and
• in her right shoulder except some decreased extension and pain on raising her arm above shoulder height.^{Footnote 9}

[13] In addition, in January 2019, Dr. L. Hatcher of the pain clinic stated that the Claimant occasionally had flares in her cervical paravertebral muscles, but they resolved with anti-inflammatories and muscle relaxants, which provided moderate relief.^{Footnote 10} Again, this report does not support the Claimant’s testimony about the extent of her pain.

[14] In terms of her functional limitations, Dr. Arshat’s account of September 2017 is contradictory. On the one hand, he ticked the box indicating the Claimant had severe limitations doing housekeeping.^{Footnote 11} On the other, he indicated that she was independent in shopping and money management, and could do housework with rest. Cooking hurt sometimes and she could not move for too long.^{Footnote 12} I am not satisfied that Dr. Arshat’s account supports a finding that the Claimant had severe limitations with housekeeping. However, he reported elsewhere that the Claimant had difficulty lifting bags of groceries, opening jars, and carrying small suitcases.^{Footnote 13}

[15] In September 2018, Dr. Arshat completed a series of questionnaires from the Claimant’s representative about the Claimant’s health condition as of January 2018. I have not attached much weight to the answers because they are contradictory. For example, Dr. Arshat stated that cervical neck pain, right shoulder pain, and low back pain did not result in substantial impairments. On the other hand, he stated that the Claimant suffered from substantial impairments as a result of chronic pain in the very same areas, as well as sciatica. In addition, Dr. Arshat completed the questionnaires in September 2018, but stated that the Claimant’s depression began in October 2018. I find that Dr. Arshat did not complete the questionnaires with enough care to make them reliable.^{Footnote 14}

Mental health condition

[16] The Claimant’s family physician diagnosed her with major depression in March 2017. However, by August 2017 he reported that her mood was stable and she was sleeping well.^{Footnote 15} In June 2017, she saw a psychiatrist, Dr. S. Dzuirdzy, who reported that on pre-screening examination her test results showed only minimal to mild depression. He concluded that her depression and anxiety were related to her physical condition.^{Footnote 16} In September 2018, Dr. Arshat stated that the Claimant’s depression led to a loss of interest, reduced appetite, and trouble concentrating. She talked and moved slowly. She had difficulty focusing.^{Footnote 17} In June 2019, Dr. J. Van Impe, psychiatrist, assessed the Claimant. He reported that “as her pain has worsened and has not been readily treatable, there has been a co-occurring decline in her mood.” He thought that she was likely exaggerating her symptoms, but believed that she had major depressive disorder with anxious features.^{Footnote 18}

The Claimant has not followed treatment recommendations

[17] A Claimant is required to take a proactive approach to their health care, and demonstrate that any treatment refusal is reasonable.^{Footnote 19}

[18] The Claimant has followed some treatment recommendations, including taking injections,^{Footnote 20} using a brace for her hand, and trying a number of different medications for pain. In three significant areas, however, she has failed to follow reasonable treatment recommendations.

[19] First, in August 2016 the Claimant saw Dr. Peter Powles for possible sleep apnea. He did a sleep study that showed mild obstructive sleep apnea and recommended the CPAP treatment. ^{Footnote 21} In September, Dr. Powles reported that the Claimant tried the CPAP machine “only one night” and “does not want to retry CPAP.”^{Footnote 22} The medical evidence contains no reference to the 3 days of migraines she testified she experienced after trying the CPAP machine. I am not satisfied that the Claimant’s refusal to continue with the CPAP machine after just one night was reasonable.

[20] Second, the Claimant refused to follow the recommendations of both Dr. Hatcher and Dr. Matsos that she take medical marijuana for her pain. At the hearing, she explained that she considers medical marijuana to be a drug rather than a medication and she refused to take drugs. I do not find this to be a reasonable explanation.

[21] Third, given that the Claimant would not take medical marijuana, Dr. Matsos recommended pain management strategies such as yoga and water related exercise.^{Footnote 23} The Claimant testified that her family doctor had not relayed Dr. Matsos’ suggestions to her. However, Dr. Matsos’ report stated that he had personally discussed these recommendations with the Claimant. She was not in ignorance of Dr. Matsos’ recommendations, as she claimed, and by her own account she did not follow his advice.

[22] I must now consider what effect the Claimant’s failure to follow treatment recommendations had on her disability status.^{Footnote 24} The medical evidence establishes that the Claimant’s main health condition was chronic pain, and that depression was secondary to the pain. According to Dr. Arshat in September 2017, the Claimant also had “severe” sleep difficulties.^{Footnote 25} Yet she did not persist in trying to control her sleep apnea, refused to take medical marijuana, and did not try to exercise. These treatments might reasonably have been expected to improve her sleep and her pain control, thereby also improving her depression, along with her ability to concentrate. She did not have a reasonable explanation for failing to follow reasonable treatment recommendations.

[23] Given the Claimant’s selective compliance with reasonable medical recommendations for the treatment of her chronic pain and sleep difficulties, I am unable to determine that she lacked the regular capacity to pursue any substantially gainful occupation by December 31, 2018. The case law is clear that in cases of chronic pain a claimant is still required to establish that the pain prevented her from pursuing regularly any substantially gainful occupation.^{Footnote 26}

The Claimant has failed to prove that she lacked a regular capacity for substantially gainful employment by December 31, 2018

[24] It is not the diagnosis of the disease, but the Claimant’s capacity to work, that “determines the severity of the disability under the CPP.”^{Footnote 27}

[25] As the Minister submitted, the Claimant has not attempted to find work since she left her job in September 2016. The Claimant submitted that she is unable to perform physically taxing work such as being a cashier or a cleaner. She relies on two reports. The first is that of Dr. Daryl Stephenson, Ph.D., ergonomist, dated December 2018. He stated that the Claimant’s job as cashier, and the associated cleaning duties, would put her at risk for musculoskeletal discomfort.^{Footnote 28} The second report is from Dr. Michael Pysklywec, occupational health doctor, who stated in February 2019 that the Claimant’s work as a cashier would put her at risk for neck, arm and back pain. Dr. Pysklywec commented that the persistence of the Claimant’s back pain was “a little unusual in that she continues to have symptoms even two years later.”^{Footnote 29}

[26] In June 2019, Dr. Arshat completed a medical report in support of the Claimant’s application for a Portuguese disability pension.^{Footnote 30} He stated that the Claimant was unable to carry on any occupation.^{Footnote 31} However, this medical report was prepared some six months after the MQP. Further, it did not take account of the Claimant’s non-compliance with reasonable treatment recommendations.

[27] In deciding whether the Claimant’s condition was severe, I must take a “real world” approach and consider factors such as her age, level of education, language proficiency, and past work and life experience.^{Footnote 32} The Claimant was only 49 years old in December 2018. While she may not be able to perform physically demanding work, the evidence does not support a finding that she would have been unable to work at less physically difficult jobs. She is fluent in spoken English. She stated that her ability to read and write English is limited. However, she also testified that she completed the CPP questionnaire without assistance. This suggests that, together with her fluency in spoken English, she would required only limited retraining for a less physically demanding job than that of cashier or cleaner. In addition, the medical evidence does not support a finding that she has difficulty sitting. A consideration of “real world” factors does not assist her.

[28] The onus is on the Claimant to show that it is more likely than not that she lacked the regular capacity to pursue any substantially gainful occupation by December 31, 2018. I find that she has failed to discharge this onus.

[29] Accordingly, I find that it is more likely than not that the Claimant’s disability was not severe by her MQP.

Prolonged disability

[30] As I found the disability was not severe, it is not necessary for me to make a finding on the prolonged criterion.

Conclusion

[31] The appeal is dismissed.