Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not entitled to a Canada Pension Plan (CPP) disability pension. He is, however, entitled to the the Post-Retirement Disability Benefit (PRDB) with payment starting as of May 2019.

Overview

[2] In 1988, the Claimant injured his back in a workplace accident. He has suffered from constant back pain since. In June 2017, he started to receive the CPP retirement pension.^{Footnote 1} In April 2018, he applied for a CPP disability pension.^{Footnote 2} He last worked as an exercise class leader for seniors. In his disability questionnaire, he stated that he stopped working in December 2017 because of his pain, stress, and inability to continue doing the exercises. He also stated that he had stopped working as an iPad, iPhone and Spanish language teacher for seniors in June 2017. He stated that he was unable to work because of several conditions. These included a low back injury, hip, knee and foot pain, gout, arthritis, and migraines.^{Footnote 3}

[3] The Minister treated the Claimant’s application as not only one for the CPP disability benefit but also for the PRDB, which came into effect on January 1, 2019. The Minister denied the application initially and upon reconsideration. The Claimant appealed to the Social Security Tribunal.

[4] For the purposes of both CPP disability and the PRDB, a disability is a physical or mental impairment that is severe and prolonged.^{Footnote 4} The Claimant’s disability is severe if it causes him to be incapable regularly of pursuing any substantially gainful occupation. His disability is prolonged if it is likely to be long continued and of indefinite duration.

[5] To qualify for the CPP disability pension, the Claimant must prove that it is more likely than not that he became disabled by the end of the month before he started to receive the retirement pension. This is because he cannot receive both CPP disability and CPP retirement at the same time.^{Footnote 5} Since the Claimant started to receive the early retirement pension in June 2017, he must establish that he became disabled before the end of May 2017.

[6] However, to qualify for the PRDB, the Claimant must prove that it is more likely than not that he became disabled by the end of his Minimum Qualifying Period (MQP).^{Footnote 6} His MQP – the date by which he has to prove he was disabled – is December 31, 2020. This date is based on his contributions to the CPP.^{Footnote 7} Since this date is in the future, I must assess the Claimant’s medical condition as of the date of the hearing.

Issues

1. Did the Claimant’s medical conditions result in his being incapable regularly of pursuing any substantially gainful employment before the end of May 2017?
2. If not, do his medical conditions result in his now being incapable of regularly pursuing any substantially gainful employment?
3. If so, is his disability long continued and of indefinite duration?

Analysis

The Claimant does not qualify for the CPP disability pension

[7] Employability is the key measure of a severe disability under the CPP.^{Footnote 8}

[8] The key question in CPP cases is not the nature or name of the medical condition, but its effect on the Claimant’s ability to work.^{Footnote 9} The Claimant’s capacity to work, not the diagnosis of his disease, determines the severity of his disability under the CPP.^{Footnote 10}

[9] The difficulty that the Claimant faces is that to qualify for the CPP disability pension, he must establish that he was severely disabled by the end of May 2017. However, he continued regularly to pursue substantially gainful employment until December 2017.

[10] During 2017, he worked at two jobs. Until December 2017, he led exercise classes for seniors. He led five to six one-half hour classes a day for five days a week. He worked about 15 hours a week. Until June 2017, he also taught evening programs for seniors in how to use an iPad and an iPhone. He also taught seniors Spanish to use on vacation. He worked 2-3 evenings a week for about 10 hours a week. He earned $15 an hour at each of these jobs.

[11] His work was substantially gainful.^{Footnote 11} His total earnings were about $28,000.^{Footnote 12} This was well above the substantially gainful amount of $15,763.92 for 2017.^{Footnote 13}

[12] He was able to work on a regular basis. He did not work for benevolent employers. An Employer Questionnaire from the Victorian Order of Nurses stated that he worked as an exercise lead/fitness instructor from July 14, 2014 to December 2, 2017. His attendance was good, the quality of his work was satisfactory, he did not need any special services, equipment or arrangements, and he was able to handle the demands of the job.^{Footnote 14} An Employer Questionnaire from the City stated that he worked as a program instructor from January 3, 2012 to October 2017. He worked on a part-time casual basis.^{Footnote 15}

[13] The Claimant testified that he could not have continued working after December 2017. He “put up” with his pain because he needed the money. He had been managing his pain for 35 years and he had learned to “live with it.” He was taking more Tylenol #3s. He was having more sleepless nights. He wouldn’t have been able to continue working even if his employment had not been terminated.

[14] I recognize that the Claimant suffered from chronic pain. However, it is not sufficient for chronic pain to exist; the pain must have prevented him from regularly pursuing a substantially gainful occupation.^{Footnote 16} The Claimant’s chronic pain did not prevent him from pursuing a substantially gainful occupation by the end of May 2017, when he last qualified for the CPP disability pension.

[15] Because the Claimant was able to work at a substantially gainful occupation after May 2017, it is unnecessary for me to take the “real world” approach. In determining his entitlement to the CPP disability pension, I do not need to consider factors such as his age, level of education, language proficiency, and past work and life experience.^{Footnote 17} It makes no sense to consider the “real world” context when doing so makes no difference to the result.^{Footnote 18}

[16] The Claimant has failed to establish that he suffered from a severe disability in accordance with the CPP requirements by the end of May 2017.

[17] Since the Claimant is not entitled to the CPP disability pension, I must determine whether he is entitled to the PRDB. For the reasons that follow, I have determined that he is.

Post Retirement Disability Benefit

Severe Disability

The Claimant’s medical conditions interfere with his ability to work

[18] I must assess the Claimant’s condition as a whole and consider all the impairments that affected his employability, not just his biggest impairments or her main impairment.^{Footnote 19} I must also focus on his condition as of the date of the hearing.

Back pain

[19] The Claimant’s most significant disabling condition is his low back pain that radiates through his right hip and groin down to his knee. The pain is constant. His legs become weak and feel like they are going to give out after standing for a half hour. After sitting for a half hour, his laps become numb. In the February 2018 disability questionnaire, he stated that he was very restricted and limited in sitting, standing, walking, lifting, carrying, reaching, and bending.^{Footnote 20}

[20] Dr. Remus, an orthopaedic surgeon, has treated the Claimant since 1988. His reports confirm that the Claimant’s back condition has been deteriorating. A report from his physiotherapist also confirms the deterioration.

[21] In January 2018, Dr. Remus reported to the Workplace Safety and Insurance Board (WSIB) that the Claimant continued to experience recurrent episodes of back pain and stiffness. Recent x-rays of the lumbar spine, sacrum, and sacroiliac joints revealed multilevel degenerative joint disease and early arthritic changes. These conditions affected any type of gainful employment involving prolonged standing or sitting, repetitive kneeling, crouching, or bending.^{Footnote 21}

[22] In the March 2018 CPP medical report, Dr. Remus diagnosed chronic multilevel degenerative disease following a back injury; chronic low back pain and stiffness with bilateral anterior thigh pain; mild to moderate hip joint osteoarthritis; and mild to moderate bilateral knee osteoarthritis. He stated that the Claimant’s condition would deteriorate further as he got older.^{Footnote 22} In March 2018, he also wrote to the WSIB that the Claimant had difficulty applying for, obtaining, and maintaining sedentary employment.^{Footnote 23}

[23] In April 2019, Dr. Remus wrote to the Canada Revenue Agency in support of the Claimant’s application for the Disability Tax Credit. He stated that the Claimant’s marked medical restrictions began in 2015.^{Footnote 24}

[24] The Claimant has received physiotherapy treatment from Thunder Bay Physiotherapy Associates for over twenty years. The treatments have been to his back, neck, knees, and arms. In June 2019, Tony Miglizza, a physiotherapist, stated there had been a marked reduction in the Claimant’s overall strength and endurance. The postural muscles of his neck and upper back had deteriorated. This prevented the Claimant from performing his activities of daily living.^{Footnote 25}

Other Conditions

[25] The Claimant suffers from numerous other conditions. In his notice of appeal, he listed 27 medical conditions.^{Footnote 26} I have considered only those that significantly affect his ability to work. I have summarized the Claimant’s testimony about his other conditions below:

• Migraines: The Claimant has suffered from migraine headaches since the 1970’s. He usually has a migraine every seven to ten days. They last from 24 to 48 hours. When they come on, he takes a Tylenol #3 and lies down in the dark. Sometimes he has to lie down for the whole day. On occasion, he had to cancel classes or go home early because of the migraines.
• Gout: The Claimant has suffered from gout since the 1990’s. This flares up a couple of time a months. If affects his right foot most. As a result sometimes he is not able to walk. The flare-ups usually last for about two days. There were times when he had to cut his classes short because of this.
• Shortness of breath: This has been getting worse. He has to walk very slowly, and stop after 20 minutes. He was often short of breath when he led the classes.
• Sleeplessness: He only averages about 4- 5 hours of sleep a night. His sleep is disrupted because of his pain and anxiety.
• Depression and anxiety: He often feels depressed, angry, and confused. He has little energy and is anti-social. His family doctor referred him to a social worker. He saw her about 6-8 times. His family doctor has not prescribed any anti-depressant or anti-anxiety medications. He has not referred him to a psychiatrist or a psychologist. The Claimant feels worthless, useless, and meaningless.

[26] The Claimant has not looked for other work since his employment was terminated in December 2017. When asked why not, he stated that he couldn’t do a sedentary job because of constant pain in his back, head, and feet. The pain interferes with his sleep. Because of the constant pain, he couldn’t focus or concentrate on any kind of job. He can’t sit or stand for long. He can’t twist or bend. His medications make him drowsy and tired.

My Findings

[27] In his October 2018 request for a reconsideration, the Claimant stated:

… I am in pain practically every day and have been for nearly 35 years. I have taken painkillers and anti-inflammatories for nearly as long …. I have had days when my lower back and hip was in pain, accompanied with a migraine as well as having my gout start up and sometimes this could last for days. If you can imagine all 3 happening at the same time, then imagine them separately, and lately I can add in arthritis.^{Footnote 27}

[28] The Claimant’s deteriorating back pain, even if considered in isolation, significantly interferes with his ability to work. In addition, his other conditions as described above also interfere with his ability to work.

[29] Considering the combined effect of all of the Claimant’s conditions, I find that his medical conditions interfere with his ability to work.

The Claimant has established a severe disability

[30] A disability is severe if it renders a Claimant incapable of pursuing with consistent frequency any truly remunerative occupation. I must assesses the severity requirement in a “real world context” and consider such factors as the Claimant’s age, education level, language proficiency, and past work and life experiences when determining his "employability".^{Footnote 28}

[31] The Minister acknowledged that the Claimant suffered a serious back injury. But it submits that he was able to retrain and work successfully until December 2017. The Minister’s position is that the evidence does not establish a medical condition that prevents the Claimant from pursuing all work.

[32] The Claimant’s deteriorating back condition means that he can no longer pursue any form of physically demanding employment. The primary issue that I must determine is whether he has the regular capacity to pursue less physical employment.

[33] The Claimant has an excellent education that includes three different college diplomas, he has a very diverse employment history, and he has numerous transferable skills. He is proficient in English and there is no suggestion of any learning disability. These positive factors would support a finding that he has the capacity to pursue sedentary employment. However, he is now 63 years old. This is less than two years away from the usual retirement age. This would support a finding that he lacks the capacity to pursue alternative employment.

[34] The Claimant suffers from multiple disabling conditions that have deteriorated since he last worked in December 2017. He suffers from constant pain in his back, hips, and knees. He suffers from unpredictable flare-ups of headaches and gout. He is very limited in standing, walking, and sitting. He has difficulty sleeping. He could not be a regular and reliable employee.

[35] I am satisfied that the Claimant lacks the regular capacity to pursue any form of substantially gainful employment. In view of this, he is not obligated to make efforts to pursue alternative employment.

[36] I find that the Claimant has established that it is more likely than not that he suffers from a severe disability in accordance with the CPP requirements.

Prolonged Disability

[37] The Claimant’s multiple disabling conditions have persisted for many years. Despite extensive treatment, they are deteriorating.

[38] The Claimant’s disability is long continued and there is no reasonable prospect of improvement in the foreseeable future.

[39] I therefore find that his disability is prolonged.

Conclusion

[40] I am dismissing the Claimant’s claim for the CPP disability because he was not disabled before the end of May 2017. However, I am allowing his claim for the PRDB.

[41] I find that the Claimant had a severe and prolonged disability by January 2019, when the PRDB came into effect. Payments start four months after the date of disability.^{Footnote 29} Payments start as of May 2019.

[42] The appeal is allowed in part.