Canada Pension Plan (CPP) disability

Decision

[1] K. H. is the Claimant in this case. He applied for a Canada Pension Plan (CPP) disability pension in May 2018. The Minister of Employment and Social Development (the Minister) denied the application. The Claimant appealed to the General Division of the Social Security Tribunal (the Tribunal).

[2] I am dismissing the appeal. The Claimant is not entitled to a CPP disability pension.

Overview

[3] The Claimant grew up in Pakistan. He moved to Canada when he was 28 years old. He is now 50. He worked as a business services agent for X for almost 10 years. He stopped in October 2015 because of insomnia, sleep apnea, high blood pressure and acid reflux. He says that he cannot work because lack of sleep makes him fatigued and unable to concentrate.^{Footnote 1} He is also anxious and depressed.

[4] The Claimant is entitled to a CPP disability pension if he meets all of these conditions:

• He must have contributed to the CPP within a time frame called the minimum qualifying period.
• He must have a disability that is both severe and prolonged.
• He must have become disabled on or before the end of his minimum qualifying period.^{Footnote 2}

[5] Until June 2020 the Minister said the Claimant’s minimum qualifying period ended on December 31, 2018.^{Footnote 3} In a recent submission to the Tribunal the Minister said it ended on December 31, 2017.^{Footnote 4} The Minister said the change came about because X amended the Claimant’s 2017 earnings.^{Footnote 5}

[6] I agree with the Minister. The Claimant’s minimum qualifying period ended on December 31, 2017.^{Footnote 6}

[7] I was concerned that the Claimant had not received any notice or explanation for the change until the hearing date. I wanted to be sure he did not take issue with the new date, and had not focussed his efforts on proving he became disabled by the end of 2018. However, the Claimant told me he was not concerned with the change. He understood it, and he did not need more time to prepare for the hearing.

The issue in this appeal

[8] I have to decide if the Claimant has a severe and prolonged disability, and if he was disabled by December 31, 2017. It is the Claimant’s responsibility to prove that this is more likely than not.

The reasons for my decision

What is a severe disability?

[9] Under the law, the Claimant’s disability is severe if he is incapable regularly of pursuing any substantially gainful occupation.^{Footnote 7} In deciding if the Claimant meets this test, I have to look at his overall medical condition and think about every health issue that might affect his employability.^{Footnote 8}

The Claimant’s evidence of his disability

[10] The Claimant told me he started to have sleep issues around 2003. His nostrils are defective, so he has to breathe through his mouth. This has caused several problems. He developed acid reflux, so he is always coughing and he has constant heartburn. His breathing is very noisy. He snores. All of these keep him from falling asleep. To get to sleep, he takes alprazolam. However, once he is asleep his tongue falls back and he stops breathing every three to five minutes. Because of this he does not sleep well. He wakes up after just three or four hours. He had several nose surgeries to try to fix the problem, but they did not work.

[11] The Claimant’s job was to take telephone calls from businesses and help them set up their payroll deductions and enroll for HST. He was always tired. He managed by drinking four cups of coffee a day. Gradually the problem got worse. He separated from his wife, and became a single parent to his three children. He grew more depressed and anxious. It added to his sleep difficulties. He was awake all night. He was usually 15 to 30 minutes late for work. He called in sick at least once a month. He told me that because he was good at math he was able to do his job. He got compliments about his performance. However, his employer was concerned about his attendance.

[12] By October 2015 the Claimant felt he simply could not work five days a week. He talked to his manager, who suggested he go on disability. His employer did not offer part time work. The Claimant does not think he would be able to work part time in any case, because of his fatigue. He has trouble functioning. He told me he cannot learn anything new, and he is forgetful.

Medical evidence of the disability

[13] The Claimant’s view of how his condition affects his ability to work is important. But there must also be some objective medical evidence to support his claim.^{Footnote 9} That means I have to look at what doctors and other health professionals have said about his condition, and consider that as well. In particular, there has to be medical evidence from his minimum qualifying period.^{Footnote 10}

[14] The Claimant’s medical issues are well documented. In 2008 he was diagnosed with a nasal obstruction.^{Footnote 11} His family doctor, Dr. Sit, wrote the March 2018 medical report that came with the Claimant’s disability application. She said the Claimant had chronic insomnia despite two nasal surgeries, CPAP and APAP machines, prescription and alternative medications, and professional counselling. His lack of sleep significantly impaired his concentration and energy during the day. He was followed by a psychiatrist and a sleep clinic, but his prognosis was poor.^{Footnote 12}

[15] The Claimant’s psychiatrist is Dr. Perera. He has seen him since 2014. In April 2019 Dr. Perera wrote that the Claimant’s severe insomnia had progressively deteriorated over the last 10 years. He was not able to function at work because of the cognitive, emotional, and physical symptoms associated with lack of sleep. He also had psychosocial stressors, including being a single parent. His insomnia was thought to be for structural/biological reasons rather than cognitive ones. Dr. Perera did not think the Claimant would ever improve to the point where he would be able to return to work full-time.^{Footnote 13}

[16] I do not think it matters that these reports were written after the Claimant’s minimum qualifying period ended. It is clear that his insomnia was chronic and affected his ability to work by December 31, 2017. By that time, both these doctors had been treating the Claimant for several years. Neither of them suggested there was a significant deterioration after the end of the minimum qualifying period. I accept that what they said about the Claimant in 2018 and 2019 also described his condition at December 31, 2017.

The Claimant had some work capacity at December 31, 2017

[17] I accept that the Claimant’s lack of sleep has created problems for him. I also accept that he has reasonably followed treatment recommendations. I don’t think he is capable of returning to his previous full-time job. But for his disability to be severe, his impairments have to prevent him from earning a living at any job, not just his usual work.^{Footnote 14} Despite what the Claimant feels about his work capacity, the evidence suggests that he could work part-time or in some other line of work on and before December 31, 2017.

[18] First, the context of Dr. Perera’s April 2019 letter tells me he was only talking about the Claimant’s ability to return to his last job, not to work in general. If Dr. Perera meant more than that, he did not explain why. There is no functional capacity evaluation or analysis of the Claimant’s impairments showing he could not do work that was not as mentally demanding as his work for X.

[19] Second, Dr. Perera said the Claimant could not return to work full-time. He did not specifically rule out part-time work. That tells me he thought the Claimant might be able to work part-time, even at his last job. The Claimant was earning $55,000.00 per year at that position.^{Footnote 15} Even if his hours were cut by two-thirds, he would still earn more than what the CPP says is substantially gainful.^{Footnote 16} The Claimant told me he was not offered part-time work. He did not think any was available. The availability of work is not relevant to the question of whether the Claimant is disabled.^{Footnote 17} What is relevant is that the medical evidence suggests he could work part-time in a well-paying field at December 31, 2017. It also suggests he could work full-time hours in an unskilled job.

The Claimant’s personal characteristics did not affect his work capacity

[20] When I am deciding if the Claimant had any work capacity, I have to consider things like his age, level of education, language skill, and past work and life experience.^{Footnote 18} Almost all of these enhance his employability. English is his second language, but he was well educated in Pakistan. He has a master’s degree in French and literature. He told me that when he came to Canada at age 28 he could already function in both French and English. He took courses in math and computer science. Before he started at X he had a varied work history. He did odd jobs, stocked shelves in a grocery store, and worked as a computer programmer, a hotel night auditor, and in a bank selling travel insurance.

[21] All of these factors show the Claimant is intelligent and has transferable skills, as well as some physical ability. The only potentially negative factor is his age. He was 48 when his minimum qualifying period ended. However, I think his other qualities make up for this drawback.

The Claimant does not have a severe disability

[22] I recognize that the Claimant’s fatigue prevents him from full-time work in a demanding area. But his personal circumstances and his condition at December 31, 2017 tell me he was likely capable of working part-time or in a field that did not require the cognitive ability of his last job. As a result, I find the Claimant had some work capacity at December 31, 2017. He must therefore show that he tried to work, but could not because of his health condition.^{Footnote 19}

[23] The Claimant did try to work, both before and after December 31, 2017. He told me he started working as a freelance computer technician shortly after he left X. He advertised on-line and went to clients’ homes to help them with their computer problems. He did not earn much money because there was a lot of competition and he had trouble getting clients. Besides that, the technology kept changing and he could not afford to upgrade his skills. He stopped trying to do this work in 2018.

[24] Again, the availability of work is not relevant to whether the Claimant was disabled. His own evidence is that he was able to work as a computer technician. He was limited not by his medical condition but by socio-economic factors.

[25] The Claimant also took an on-line course in 2015 and 2016 to become a real estate agent. He told me he had difficulty completing the course because he found it hard to memorize. He got his real estate licence in 2018, but did not have a successful career in the field. He found a job with a broker, but his fatigue made it hard for him to drive from his home to the office in downtown Toronto. He had trouble doing open houses because he was too tired to carry heavy sign boards. He also had trouble finding clients. He only managed to sell one house, which belonged to a relative.

[26] I don’t view the Claimant’s experience in real estate as compelling evidence one way or the other. I am not persuaded that his lack of success was mainly because of his health. On the other hand, I don’t think his ability to get a real estate licence and find a job necessarily shows he was capable regularly of substantially gainful work.

[27] However, the medical evidence and the Claimant’s ability to work as a computer technician do show this. Although the Claimant could not work full-time for X when his minimum qualifying period ended, he was not incapable regularly of pursuing any substantially gainful occupation by December 31, 2017. His disability was not severe.

Prolonged disability

[28] Because I found the Claimant’s disability was not severe, I do not have to consider whether it was prolonged.

Conclusion

[29] The appeal is dismissed.