Canada Pension Plan (CPP) disability

Decision

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

Overview

[2] The Claimant was 44 years old when she applied for a CPP disability pension in June 2019. She worked as a labourer in a window factory. She stated that she had been unable to work since July 2000 because of several conditions. These included left foot nerve damage, celiac disease, hematuria, lupus, cell anemia, lymphatic legs, urinary tract infections, bladder infections, chronic bronchial pneumonia, leg pain and numbness, right side and back pain, and dizziness.^{Footnote 1} The Minister denied the application initially and upon reconsideration. The Claimant appealed to the Social Security Tribunal.

[3] This is the Claimant’s second application for CPP disability. She initially applied in April 2007. The Minister dismissed that application in July 2007. The Claimant did not request a reconsideration.

[4] The Minister acknowledges that the Claimant now suffers from numerous conditions and that she may now be severely disabled. However, it states that none of her conditions prevented her from working by March 31, 2010, which is the last date she qualified for CPP disability. The Minister also states that she had the capacity to pursue alternative less physically demanding work and that she failed to make reasonable efforts to do so.

[5] For the Claimant to succeed, she must prove that it is more likely than not that she has a disability that was severe and prolonged by March 31, 2010. This date is based on her contributions to the CPP and the applicable child rearing dropout provisions.^{Footnote 2}

[6] The CPP defines “severe” and “prolonged”. A disability is severe if it makes a person incapable regularly of pursuing any substantially gainful occupation.^{Footnote 3} It is prolonged if it is likely to be long continued and of indefinite duration.^{Footnote 4}

Issues

1. Did the Claimant’s left foot nerve damage result in her being incapable regularly of pursuing any substantially gainful employment by March 31, 2010?
2. If so, was her disability likely to be long continued and of indefinite duration by that date?

Analysis

Severe Disability

The Claimant’s medical conditions at March 31, 2010

[7] I must focus on the Claimant’s condition as of March 31, 2010.

[8] The CPP is an insurance regime based on contributions. Under the CPP, the Claimant is only covered for conditions that became severe on or before her MQP. She is not covered for conditions that became severe afterwards.

[9] Recent Federal Court decisions have stated that, in order to succeed, a claimant must provide objective medical evidence of their disability at the time of their MQP. The Federal Court has also stated that medical evidence dated after the MQP is irrelevant when a claimant fails to prove that they suffered from a severe disability prior to the MQP.^{Note de bas de page 5}

[10] Although the Claimant now suffers from several disabling conditions, she acknowledged that her only significant medical condition as of March 31, 2010 was her left foot nerve damage. Since all of her other conditions started after that date, they are not relevant to whether she had a severe disability in accordance with the CPP.

[11] The medical evidence confirms that her other conditions were not significant until least 2012:

• The only impairment stated in the April 2007 disability application was her damaged left foot nerve. The only medical condition mentioned in the March 2007 CPP medical report was left foot neuropathic pain.^{Footnote 6}
• There is no medical evidence in the hearing file between March 2007 and the April 2016 report from Dr. Homik, respirologist.^{Footnote 7} The Claimant saw Dr. Homik for recurrent sinus and chest infections relating to immune deficiencies and bronchiectasis.^{Footnote 8}
• In February 2018 Dr. Saunders, family doctor, stated that the Claimant’s bronchiectasis and immune deficiency started in 2012 and that her celiac disease started in 2016.^{Footnote 9}
• In February 2019, Dr. Storsley, nephrologist, stated that the Claimant did not have hematuria^{Footnote 10} or any other urological history before May 2018.^{Footnote 11}
• In September 2019, Dr. Man, rheumatologist, stated that the Claimant developed gross hematuria accompanied by right flank pain, sweats, flushing, bilateral leg pain, and weakness about a month and a half after undergoing a hysterectomy in May 2018.^{Footnote 12}

[12] I have considered only the Claimant’s left foot nerve damage in deciding whether she suffered from a severe disability by March 31, 2010, since all of her other medical conditions developed after that date.

The Claimant’s left foot nerve damage interfered with her ability to work by March 31, 2010

[13] The Claimant stated that she has been unable to work since she underwent a bunionectomy^{Footnote 13} and hammertoe^{Footnote 14} correction surgery in November 2001.^{Footnote 15} Every day was a struggle because of the constant pain. The pain medications did not work. They had side effects that included dizziness and not being able to focus. Her mother came over almost every day to help her with the housework and the care of her son.

[14] In February 2002, Dr. Saunders stated that the Claimant still had a significant amount of pain and swelling about her left large and second toes. She was unable to wear a shoe. She had difficulty with any amount of weight bearing.^{Footnote 16} In May 2002, Dr. Baria, surgeon, stated that the Claimant was “at present totally disabled.” She could not stand or walk for more than 15 minutes because of her foot pain. Dr. Baria diagnosed reflex sympathetic dystrophy (RSD)^{Footnote 17} in the left big and second toes as well as pain and swelling in the left foot.^{Footnote 18}

[15] In July 2002, Dr. Sutton, pain management, stated that the Claimant had experienced left sided foot pain since the November 2001 surgery. The Claimant told Dr. Sutton that she had a constant throbbing pain in her left great toe with numbness, tingling, and aching. Her pain was worse after she stood for 30 minutes. She likely had early complex regional pain syndrome.^{Footnote 19}

[16] In September 2003, Dr. Baria stated that the Claimant’s left big and second toe pain persisted. She was unable to stand or walk for a prolonged period. Dr. Baria was not able to give a complete diagnosis. The Claimant was pregnant so he could not do further tests or provide medications. He suspected that there might have been non-union and/or a low-grade infection at the surgery site.^{Footnote 20}

[17] In November 2005, Dr. Pilkey, director of orthopaedic trauma at the University of Manitoba Faculty of Medicine, stated that the Claimant was still having a lot of pain and disability related to her foot. The pain was “unbearable” when she was weight bearing. The pain “remarkably” affected her ability to function. He diagnosed regional pain syndrome.^{Footnote 21}

My Findings

[18] At March 2010, the Claimant had significant limitations in standing and walking. She also suffered from constant pain and side effects from her pain medications. She could not pursue work that required extensive standing or walking. This interfered with her ability to return to her previous work as a labourer in a window factory or at a grocery store.

The Claimant has not established that she suffered from a severe disability

[19] 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 a claimant’s age, education level, language proficiency, and past work and life experiences when determining her "employability".^{Footnote 22}

[20] Since the Claimant was unable to return to employment that required extensive standing and walking, the primary issue that I must decide is whether she was regularly able to pursue alternative work.

[21] I recognize that the Claimant suffered from chronic pain. However, it was not sufficient for chronic pain to exist; the pain must have been such as to prevent her from regularly pursuing any substantially gainful occupation.^{Footnote 23}

[22] If a claimant has some capacity to work, she must show that she has made efforts to obtain and maintain employment that were unsuccessful because of her medical condition.^{Footnote 24}

[23] After the surgery, the Claimant attempted to return to work on only one occasion. She worked in the bakery at a grocery store from August to November 2016. She made cakes and served customers. She stated that she was in constant pain from standing on her feet. In addition, the manager was not satisfied with the cakes she made and a more senior employee would not help her.

[24] In the March 2007 disability questionnaire for her first disability application, she stated that she stopped working in the bakery for two reasons. The first was the company did not want to train her. The second was her foot was very sore after working for seven hours.^{Footnote 25}

[25] When recording her difficulties or functional limitations^{Footnote 26} she stated that:

• She had to elevate her foot while sitting;
• Her foot was very painful if she had to stand for too long;
• The pain went up her leg and into her stomach;
• She could walk for only about 30 minutes;
• She had difficulty doing household maintenance; and
• She had difficulty sleeping because of the pain.

[26] She did not record any other difficulties or functional limitations. Significantly, she noted no difficulties or functional limitations with lifting, carrying, reaching, bending, speaking, remembering, or concentrating.

[27] There is a record of a telephone conversation between the Claimant and Service Canada on July 16, 2007.^{Footnote 27} This states, amongst other matters, that the Claimant told the medical adjudicator:

• She was ‘let go’ when she asked her manager for more extensive and thorough training;
• She believed she would have continued working if the company had not dismissed her;
• She had been unsuccessfully looking for work;
• She had good computer skills and believed she would have been able to manage an office job; and
• She had not sought assistance from any agencies in her job search.

[28] At the hearing, the Claimant stated she did not remember the telephone conversation. She was not looking for work because she could not work. She does not have good computer skills – she is able only to type and use Windows. She never looked for an office job because she did not want to work in an office. She stated, that an office job is “just not me … I am a people person.” Siting was a challenge for her because she has to keep her leg up. She was in pain “around the clock.” She never attempted to upgrade her work skills. I asked her why she did not do this. She responded that she did not know why.

[29] I recognize that the Claimant might have needed to raise her foot while sitting, but I do not see how this would have prevented her from pursuing an office job. She could have arranged to keep her leg up when required. Not wanting to work in an office is not the same as being unable to do so.

[30] I am satisfied that the Claimant had some capacity to work at the end of March 2010 and that she failed to make reasonable efforts to do so.

[31] The Claimant was only 35 years old at the MQP. She was decades away from the usual retirement age. She has a grade 12 education and reasonable computer skills. She is fluent in English. Although her work history only involved unskilled physical work^{Footnote 28}, she had the capacity to pursue and/or train for alternative less physically demanding work including office work.

[32] Because she has not looked for sedentary work, she has not demonstrated that she was unable to obtain or maintain employment because of her health condition. The onus is on the Claimant to show that it is more likely than not that she lacked the regular capacity to pursue substantially gainful employment. I find that she has failed to discharge this onus.

[33] The Claimant has filed reports from Dr. Saunders and Dr. Sutton in 2020 and 2021. These reports support that the Claimant is now severely disabled.^{Footnote 29} However, they date from more than 10 years after the MQP. They do not establish that she was severely disabled at that time.

[34] The Claimant has failed to establish that it is more likely than not that she suffered from a severe disability in accordance with the CPP requirements as of the end of March 2010.

[35] Since she has failed to establish a severe disability, I do not need to make a determination on the prolonged criteria.

Conclusion

[36] The appeal is dismissed.