Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, K. F., is eligible or a Canada Pension Plan (CPP) disability pension. Payments are to start October 2017. This decision explains why I am allowing the appeal.

Overview

[2] The Claimant last worked as a full-time material handler from October 2014 until July 2016. In January 2016, he had a work-related fall from an 8 foot ladder that caused back pain, headaches, and dizziness. The Claimant applied for a CPP disability pension on September 7, 2018. The Minister of Employment and Social Development Canada (the Minister) refused his application because he is young, fluent in English, has no cognitive barriers, and no serious orthopedic or neurological impairments. The Claimant appealed to the General Division of the Social Security Tribunal.

What the Claimant must prove

[3] For the Claimant to succeed, he must prove that he had a disability that was severe and prolonged by December 31, 2018. This date is based on his contributions to the CPP.^{Footnote 1}

[4] A disability is severe if it makes a person incapable regularly of pursuing any substantially gainful occupation. It is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 2}

The reasons for my decision

[5] I find that the Claimant had a severe and prolonged disability as of July 2016. I reached this decision by considering the following issues.

Was the Claimant’s disability severe?

The Claimant has functional limitations that affect his capacity to work

[6] My decision about whether the Claimant’s disability is severe is not based on his diagnoses. It is based on whether he has functional limitations that prevent him from working.^{Footnote 3} I have to look at his overall medical condition and think about how his health issues might affect his ability to work.^{Footnote 4}

[7] The Claimant argues that his chronic back pain, headaches, and secondary anxiety/depression has resulted in an inability to sit for more than 5 to 10 minutes, stand for any prolonged period, difficulty bending/reaching/lifting, weakness/tingling in his legs, decreased back range of motion, foot pain/cramping, insomnia, and an inability to complete household tasks. He has to use a cane for support with any walking.

[8] The Claimant is not married, but he has a son that he supports back in Guyana. In December 2018, the Claimant was living in a basement apartment with his brother. Since 2016, he has had to rely on his brother for daily support. He does the grocery shopping, laundry, cooking, and cleaning. The Claimant is socially isolated because of his condition and rarely leaves his house. His days are spent alternating between resting and trying to do some basic chores. The fact that he is not able to do what he used to do is what has caused his symptoms of depression and anxiety.

[9] In assessing the Claimant’s capacity to work, I have placed more weight on the medical reports from the Claimant’s treating physicians. They are in the best position to comment on the Claimant’s condition, his response to treatment, and his ongoing functional limitations.

[10] The medical evidence from Dr. Buchstein, Dr. Aziz, Dr. Karmy, and Dr. Nicoara supports the Claimant’s argument. MRIs of the Claimant’s spine from 2017 also provide objective evidence of multiple small disc herniations and mild to moderate neuroforaminal narrowing in the thoracic spine. They also show multi-level disc disease in the lumbar spine that compresses the S1 nerve roots.^{Footnote 5}

[11] In July 2017, the Claimant’s treating pain specialist, Dr. Karmy, reported that the Claimant had chronic pain in his neck, right shoulder, back, and both lower limbs since his work-related fall in 2016. His daily headaches were subjectively rated between 5-9/10, his neck/right shoulder pain was rated between 5-6/10, and his lower back pain was rated at 9/10. The Claimant’s pain was aggravated by changes positions, bending, heavy lifting, and prolonged sitting or standing.

[12] In December 2017, Dr. Nicoara, psychiatrist, reported that the Claimant’s adjustment disorder, anxiety, and depression were contributing to his overall medical condition. In March 2018, Dr. Buchstein, family doctor, also reported that the Claimant was unable to sit or stand for more than 5 to 10 minutes. He also had weakness in his legs and persistent pain. In November 2018, Dr. Aziz, psychiatrist, reported that the Claimant was suffering from ongoing chronic pain, insomnia and low grade depression.

[13] I find that another important consideration in this case relates to how subjective the impact of pain actually is. Pain cannot be measured empirically, but its perception can vary greatly from one person to another. For that very reason, I have placed equal weight on the Claimant’s credible testimony about the subjective impact pain has on his daily life, and on the medical evidence contained in the Hearing File.

[14] I am also aware that there are medical reports contained in the Hearing File that do not support the Claimant’s argument. For example, in November 2016 a physiotherapy report indicated that core strengthening had made a big improvement in the Claimant’s back symptoms and range of motion. The Claimant, however, submitted that the report was not accurate in that he has never achieved those gains. I accept the Claimant’s submission based on supportive findings in more recent reports from Dr. Buchstein and Dr. Karmy.

[15] Overall, I find that the evidence shows that the Claimant had functional limitations that affected his ability to work by December 31, 2018.

The Claimant does not have work capacity

[16] When I am deciding if the Claimant is able to work, I must consider more than just his medical conditions and their effect on functionality. I must also consider his age, level of education, language proficiency, and past work and life experience. These factors help me to decide if he can work in the real world.^{Footnote 6}

[17] I find that the Claimant has no capacity to work in the real world. He came to Canada from Guyana as a landed immigrant in 2012. He stopped going to school in Guyana before he finished grade 8. He can speak fluently in English, but his reading and writing skills are weaker. He has only ever worked as a physical labourer in factories. He does not own a computer and has no computer skills.

[18] There is no question that the Claimant is quite young at 29 years of age. That, in and of itself, does not necessarily preclude him from being granted a CPP disability pension. The Claimant has a very limited formal education, he has no transferable skills, and he has many functional limitations. He cannot sustain any posture and has restrictions related to bending/lifting/reaching. I find that the combination of these factors makes him a poor candidate for successful re-training or for lighter work.

[19] The Claimant did return to modified full-time work shortly after his initial accident. His duties involved standing and picking boxes. Prior to the accident, he was offloading parts from trailers. His pain kept getting worse as he continued to work, but he felt that he had no choice but to keep working. He had no other way of supporting himself or his son in Guyana. In July 2016, the Claimant passed out at work from pain and had to be taken by ambulance to a local hospital. In March 2018, Dr. Buchstein reported that there was no modified job or consistent daily schedule that would accommodate the Claimant’s limitations.

[20] I accept that the Claimant continued working for as long as he could, doing the only type of work that he was qualified to do based on his education and work experience. He has not looked for other work since July 2016 because his condition has not improved.

The Claimant made reasonable effort to follow recommended treatment

[21] The Claimant has made reasonable effort to follow medical advice.^{Footnote 7} In December 2018, the Claimant was taking Mirtazapine, Tylenol, Nortriptyline, and Pregabalin medications. He is currently only taking Pregabalin for pain because he cannot afford other medications. Since February 2018 he has been attending a pain clinic every two weeks for nerve block and trigger point injections. He also attended physiotherapy and massage when it was covered through WSIB. The Claimant has consulted with multiple specialists for his physical and psychological conditions.

[22] According to Dr. Karmy in June 2017, no treatment or medication has improved the Claimant’s symptoms. In January 2019, Dr. Sandhu, anesthesiologist, confirmed that pain injections provided little, if no benefit. The Claimant submitted that he continues to pursue recommended treatment as best he can, because he wants to get better. I accept this. Unfortunately, no treatment has been able to improve his functionality.

Is the Claimant’s disability prolonged?

[23] The Claimant’s disability is prolonged. His condition began in January 2016, it was present when he left work in July 2016, and it continues today. Despite being off work, taking medications as he can afford them, doing home exercises, receiving regular pain injections, and consulting with multiple specialists, the Claimant’s overall condition has not really improved. Dr. Buchstein does not expect the Claimant’s restrictions or limitations to change.

Conclusion

[24] I am allowing this appeal. The Claimant had a severe and prolonged disability in July 2016 when he stopped working. However, the CPP says that he cannot be deemed disabled more than fifteen months before the Minister received his disability application. After that, there is a four-month waiting period before payment begins.^{Footnote 8} The Minister received the Claimant’s application in September 2018. That means he is deemed to have become disabled in June 2017. Payment of his pension starts as of October 2017.