Canada Pension Plan (CPP) disability

Decision

[1] I am dismissing the appeal. The Claimant, J. W., is not entitled to a Canada Pension Plan (CPP) disability pension.

Overview

[2] The Claimant is 45 years old. She was born and raised in South Korea. She worked as a nurse there before immigrating to Canada in 1999. She went to university to qualify as a registered nurse in British Columbia, after which she held nursing positions until January 2014.

[3] The Claimant’s last job was working on a hemodialysis unit at a hospital in Vancouver. In August 2012 she was in a car accident. She was off work for four months. She spent most of 2013 trying to return to work. She struggled with accommodated tasks, and she was never able to return to her regular duties. In January 2014 she went on medical leave on her doctor’s advice. She has not worked since. She says she is disabled because of a rotator cuff tear, bursitis, myofascial pain, migraines, and depression.^{Footnote 1}

[4] The Claimant applied for a CPP disability pension in June 2017.^{Footnote 2} The Minister of Employment and Social Development (the Minister) denied the application. The Claimant appealed to the Social Security Tribunal.

What I have to decide

[5] For the Claimant to succeed, she must prove she has a disability that is severe and prolonged. A disability is severe if a person is incapable regularly of pursuing any substantially gainful occupation. It is prolonged if it is likely to be long continued and of indefinite duration.^{Footnote 3}

[6] The Claimant must also prove she became disabled by the end of her minimum qualifying period. The minimum qualifying period is based on contributions to the CPP. The Claimant’s minimum qualifying period will end on December 31, 2022.^{Footnote 4}

[7] Because the Claimant’s minimum qualifying period has not ended, I have to decide if she was disabled on or before the date that I heard her appeal. It is the Claimant’s responsibility to prove that this is more likely than not.

The reasons for my decision

[8] The Claimant gave spontaneous and straightforward testimony at the hearing. I believe she has had a difficult time, and that she genuinely feels she is disabled. However, I cannot find that she is disabled under the CPP. I reached this decision by considering the following issues.

The Claimant has functional limitations that affect her ability to do some types of work

[9] My decision about whether the Claimant’s disability is severe is not based on her diagnosis. It is based on whether she has functional limitations that prevent her from earning a living.^{Footnote 5} I have to look at her overall medical condition and think about every health issue that might affect her employability.^{Footnote 6}

[10] The Claimant says she has stiffness and pain in her neck, shoulders and shoulder blades. She has occasional back pain caused by a previous work injury. She has migraines, depression, stress and worry. These combine to cause difficulties in many areas, including sitting, standing, walking, reaching, carrying, bending, looking after personal needs and household maintenance, sleeping, concentrating, and remembering.^{Footnote 7}

[11] The medical evidence supports the Claimant’s argument. Her condition has been thoroughly investigated over the years. An MRI showed a partial thickness tear in her right shoulder.^{Footnote 8} Functional capacity evaluations concluded she had limitations that affected her ability to work.^{Footnote 9} The doctors she has seen have not questioned that she has myofascial pain and other conditions stemming from the 2012 car accident, and made worse by a second accident in January 2015.

[12] The Claimant’s family doctor, Dr. Moric, summarized her condition in June 2019. She said the Claimant has soft tissue injuries to her neck and upper back, a partial rotator cuff tear and related bursitis in her right shoulder, myofascial pain, headaches, post concussion syndrome, anxiety, and depression. Her conditions are inter-related. She was unable to return to her own occupation.^{Footnote 10}

[13] The Claimant has not been able to get a more recent report from Dr. Moric because of the COVID-19 pandemic. The only recent medical reports she managed to get were from her regular visits to a pain clinic. They show the Claimant continues to have neck and shoulder pain.^{Footnote 11} In these extraordinary times, it would be unfair for me to insist on up-to-date objective evidence of her other conditions. As I said above, the Claimant was credible. I accept that she continues to have pain, headaches, anxiety and depression as Dr. Moric reported in June 2019.

[14] The medical evidence shows the Claimant has functional limitations that affect her ability to work at her usual job, or at any job with similar physical requirements. Her duties included handling heavy equipment and transferring patients. She told me that on her graduated return to work she still had to do heavy tasks, but she had fewer patients and she could ask for help if necessary. Even with these accommodations, she struggled. Her modified duties ended in December 2013. She was expected to return to her usual job, at full-time hours, but she did not think she would be able to manage. Dr. Moric advised her to stop working, so she did.

What the Claimant said about her work capacity

[15] I accept that the Claimant’s multiple medical problems prevent her from doing some jobs. However, for her disability to be severe, her impairments have to prevent her from earning a living at any type of job, not just her usual work.^{Footnote 12}

[16] The Claimant told me she wanted to find a more sedentary nursing job, because she did not want to give up her career. In 2015 she took on-line courses that would qualify her to become an educator in hemodialysis. The courses were easy because she already knew the subject well. She only had to spend 30 minutes to two hours a week, and she could print out the material and look at it wherever and whenever it was convenient for her.

[17] The Claimant told me that she now feels she was being unrealistic in thinking she could do any type of work. She is in pain and fatigued all the time. She has numbness and tingling into her hands and feet. Her headaches are unpredictable. She would only be able to do a job for a couple of hours, here and there. Besides not being able to predict when her symptoms will overwhelm her, she has to spend a lot of time going to medical appointments to manage her condition. Many of her treatments were on hold because of the pandemic, but the Claimant expects to resume this schedule. She says the number of appointments she has to go to would not allow her to commit regularly to any kind of employment.

[18] The Claimant’s opinion about her ability to work is important, but I have to look at the objective evidence too. That evidence is not straightforward.

What the objective evidence said about the Claimant’s work capacity

[19] The Claimant had a functional capacity evaluation in November 2015. She was assessed by Ms. Higgon, an occupational therapist and certified work capacity evaluator. She demonstrated the ability to do most of the tasks her job required, except that she was limited in  reaching above shoulder level, grip strength, ability to do manual and mechanical transfers, repositioning patients, lifting, pushing, and pulling. She did not show fatigue during the evaluation. Ms. Higgon said the Claimant could resume 12 hour shifts as long as the work demands were a match for her demonstrated function. She said the Claimant demonstrated “full limited/sedentary strength capacity, with select aspects of light strength capacity.”^{Footnote 13}

[20] In July 2016  a psychiatrist, Dr. Anderson, did an independent medical evaluation. He said the Claimant had physical, cognitive, and emotional difficulties as a result of the August 2012 and January 2015 accidents. He said she worried excessively about her physical symptoms, and had likely developed persistent somatic symptom disorder with predominant pain (formerly called a chronic pain disorder). She also had a generalized anxiety disorder and a major depressive disorder. She likely had cognitive difficulties due to pain, anxiety, depression, insomnia, fatigue, and general stress. He said the Claimant would “not likely be competitively employable for a number jobs due to her ongoing physical, cognitive and emotional difficulties.”^{Footnote 14}

[21] In March 2017 the Claimant had another functional capacity evaluation. The evaluator said she had limitations to her neck, shoulder, upper back function, and strength. These likely precluded her from working in a “competitive, meaningful capacity at this time.” If she was able to increase her functional abilities she might be able to resume part-time work at sedentary to light nursing positions.”^{Footnote 15}

[22] In April 2017, Dr. Moric wrote a comprehensive report detailing the Claimant’s medical history and diagnoses. She doubted the Claimant would ever return to her previous nursing duties and said that, once improved, she would need to have sedentary, lighter duties. She said that if the Claimant’s physical and mental health did not improve it would be difficult for her to work because of lack of energy, insomnia, anxiety, irritability, poor concentration, and pain.”^{Footnote 16}

[23] In 2019 Dr. Moric wrote that the Claimant was unable to return to her own occupation “at this time”. She could not say when the Claimant would be able to seek other employment. She answered “no” to the question “Is patient a suitable candidate for some form of trial employment or retraining?”^{Footnote 17} These comments suggest the Claimant lacked work capacity. However, Dr. Moric also said the Claimant’s current restrictions or limitations were “unable to do [patient] care, lifting, pushing, pulling, drawing up medications 5-10 cc, upper body strength is very limited.”^{Footnote 18} That suggests the Claimant was capable of working as long as the job did not require her to perform any of the activities listed. I think Dr. Moric was mistaken when she listed the Claimant’s physical problems as the only workplace limitations. I say that because in the same report she noted the Claimant’s headaches, anxiety and depression, and said her conditions were inter-related.  

The Claimant has some work capacity

[24] Most of these reports suggest the Claimant has limited to no work capacity, unless her condition improves. So far, it has not. However, none of the evaluations took into account a significant fact, which is that for almost six years the Claimant has been the primary caregiver to her daughter, who was born in July 2014. This oversight makes them of limited value in deciding if the Claimant has a severe disability under the CPP.

[25] The Claimant told me that her mother came from South Korea to help for the first three months after her daughter was born. After she went back, the Claimant assumed almost all the burden of infant and child care, and that has continued. I acknowledge that the Claimant has struggled, but the fact remains she has managed to care for her daughter consistently and with very little help through the most tiring and labour-intensive years from birth to age six. I see no indication in the file that her doctors were concerned about her ability to do this safely or competently. The ability to look after a child does not always mean a person is capable regularly of working at substantially gainful employment. But the length of time the Claimant has been able to do this tells me that throughout this period she has had at least some work capacity.

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

[26] When I am deciding if the Claimant has work capacity, I also have to consider things like her age, level of education, language skill, and past work and life experience. These help me decide if she can work in the real world.^{Footnote 19}

[27] These factors work in the Claimant’s favour. She is relatively young, at 45. She has a university degree and many years of experience in health care. She is fluent in English. She may not be able to do her previous job, but she has transferable skills that likely make her employable elsewhere.

[28] Because there is evidence the Claimant has some work capacity, she must show that she tried to work but could not because of her health condition.^{Footnote 20} The Claimant has not tried any work since January 2014. The job she left required physical labour beyond her capabilities. She has not tried light, sedentary, or part-time work. I acknowledge that Dr. Anderson and others doubted her ability to do this. However, as I noted above, they did not take into account that she was able to look after her daughter. I cannot reconcile their opinions with that fact.

[29] The Claimant’s experience with on-line training in 2015 doesn’t tell me anything about the Claimant’s work capacity. She successfully completed part-time courses that she could work on when she felt well enough. It is possible she would not have been able to spend more time or follow a regular schedule if it was required. It is also possible she would have been able to.

The Claimant’s disability is not severe

[30] The Claimant has not tried to work at a light, sedentary or part-time job within her limitations. Therefore, I cannot find she is incapable regularly of pursuing any substantially gainful occupation. She did not prove that her condition is severe.

Conclusion

[31] Because I decided the Claimant’s condition is not severe, I did not consider whether it was prolonged.

[32] The appeal is dismissed.