Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Claimant, R. J., is eligible for Canada Pension Plan (CPP) disability benefits. Payments start as of May 2019. This decision explains why I am allowing the appeal.

Overview

[3] The Claimant is a 54-year-old man who used to work as a security guard and as a delivery driver for Canada Post. His health began to deteriorate in the mid-1990s and he eventually went on ODSP. He is not on ODSP now because his wife’s income is too high.

[4] The Claimant applied for CPP disability benefits in April 2020. In his application, he reported that he is unable to work because of chronic renal failure, congestive heart failure, severe arthritis and back problems.^{Footnote 1}

[5] The Minister of Employment and Social Development (Minister) denied his application at the initial and reconsideration levels of adjudication.

[6] The Minister acknowledges that the Claimant can’t work now. However, the Minister says that the medical evidence does not support a finding of a severe disability at the time the Claimant met the contributory requirements for disability benefits.

[7] The Claimant appealed the Minister’s decision to the Social Security Tribunal’s General Division. He says he has been disabled for many years.

What the Claimant must prove

[8] For the Claimant to succeed with his appeal, he must prove his disability was severe and prolonged by December 31, 2014. This date is based on his contributions to the CPP.^{Footnote 2}

[9] The Claimant also had some CPP contributions in 2015. However, these contributions were below the minimum amount the CPP accepts. These contributions let the Claimant qualify for benefits if he became disabled between January 2015 and the end of February 2015.^{Footnote 3}

[10] To state it simply, the Claimant will qualify for CPP disability benefits if his disability became severe and prolonged by February 28, 2015.

[11] The words “severe” and “prolonged” are defined in the CPP legislation.

[12] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 4}

[13] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 5}

Reasons for my decision

The Claimant’s disability has worsened in recent years

[14] There is no question that the Claimant’s disability has worsened since December 2014. In May 2020, the Claimant’s nephrologist (Dr. Amtul Musawir) reported that the Claimant has chronic kidney disease that began in August 2019 and that requires dialysis three times a week. He also said the Claimant has non-ischemic cardiomyopathy and morbid obesity (160 kg). Dr. Musawir described the resulting impairments and limitations as shortness of breath, fluid overload, an inability to walk more than a couple of meters, an inability to bend, exercise intolerance, and difficulties with changing body positions, maintaining body positions and mobility.^{Footnote 6}  

The Claimant had functional limitations that affected his ability to work by the end of 2014

[15] Although the Claimant’s disability worsened after December 2014, he was not without health issues at that time. In fact, the evidence shows he had significant functional limitations by the end of 2014 that would have affected his ability to work.

[16] The Claimant testified that in 2014, he was in constant pain (chest, back and knee) and he was taking a lot of painkillers. He also had shortness of breath. He could not stand for any length of time, and had a limited sitting tolerance. He could not bend, and so his spouse had to help him get dressed. She also had to help him get in and out of the car.

[17] The Claimant’s spouse (L. J.) testified that the Claimant’s health started to deteriorate in 1995, after their son was born. He eventually went on ODSP. She described the last 10 years as “horrendous” and she explained that she has dressed the Claimant, bathed the Claimant and essentially done everything one can think of for him.

[18] The medical evidence is also supportive of a finding of the Claimant having functional limitations by the end of 2014.

[19] In July 2013, the Claimant’s respirologist (Dr. Omar Kify) reported the Claimant has morbid obesity and arthritis, and as a result the Claimant is quite limited. He could walk 10-20 feet on a flat surface, and stairs were definitely not possible for him.^{Footnote 7}

[20] In July 2014, Dr. Kify reported that the Claimant was very short of breath with audible wheezes and decompensated level of activity; walking only about 10-20 steps.^{Footnote 8}  

[21] In August 2014, Dr. Spitale reported the Claimant’s weight as 466 pounds, and she noted that walking short distances was a bit of a struggle for the Claimant.^{Footnote 9}

[22] A pulmonary function test of December 2014 showed a mixed obstructive and restrictive defect. The obstruction was described as moderate in severity, and was likely due to asthma. The restriction was described as severe in nature, and was likely due to the Claimant’s high body mass index.^{Footnote 10}

[23] In December 2014, Dr. Kify reported the Claimant’s asthma seemed to be under control, but he noted the Claimant continued to have his usual level of shortness of breath and dyspnea.^{Footnote 11}

[24] In July 2016, the Claimant’s family physician (Dr. Michael Petrini), reported that the Claimant’s diagnoses include morbid obesity and chronic obstructive pulmonary disease (COPD). Dr. Petrini explained the Claimant is extremely limited in all activities and needs an inordinate amount of time for his activities. I know that Dr. Petrini’s report was written about 1.5 years after December 2014, however, the morbid obesity and COPD were not new conditions. They existed well before the end of 2014. Also, Dr. Petrini implied that the condition causing the most limitations was the obesity. In this regard, he wrote that the “obesity itself is disabling”, and then he added the Claimant also has cardiac and respiratory disease.^{Footnote 12}  

The Claimant worked after December 2014

[25] The Claimant worked for two employers between December 2014 (the date he met the contributory requirements) and September 2017 (his last day of work).

[26] One employer was Canada Post. The Claimant began working as a rural route driver in 1995 and he held that position for about 10 years. At that time (around 2005), his spouse took over the job. The Claimant assisted his spouse as a “helper” for several years. He stopped working as a “helper” when his spouse qualified for a corporate vehicle. The corporate vehicle was right-hand drive and so the Claimant’s spouse no longer needed a helper.

[27] I have conflicting evidence as to when the Claimant stopped working as a helper. In a Questionnaire of June 2020, the Claimant said this job ended in 2016.^{Footnote 13} At the hearing, the Claimant’s spouse told me she qualified for the corporate vehicle in 2014 or 2015. In any event, the Claimant was clearly doing some work for Canada Post after December 2014 because he told me that he tried to work as a back-up driver until early 2017 when he could no longer do it and had to “come in off the road”.

[28] The other employer was Davis Security. With this employer, the Claimant worked “on and off’ as a security guard from about 1985 to September 3, 2017. That job ended because Davis Security amalgamated with another company, and the new company did not have any work the Claimant was able to do.

The Claimant’s work activity after December 2014 is not indicative of a capacity regularly to pursue a substantially gainful occupation

[29] The Minister submits that the Claimant’s work activity after 2014 shows he had the capacity to perform suitable work years after December 31, 2014.^{Footnote 14} The Minister points to an Employer Questionnaire that was filled out by L. L. in June 2020. In that Questionnaire, L. L. reported that the Claimant worked as a security guard part time because that was all the work that was available. She also wrote that the Claimant’s work was satisfactory and that he had the ability to handle the demands of the job.

[30] I agree with the Minister that the Claimant’s work activity is an important consideration. After all, the definition of a severe disability is directly linked to a person’s ability to work. However, I do not agree with the suggestion that the work the Claimant did after 2014 is indicative of a capacity regularly to pursue a substantially gainful occupation. 

[31] First, it is true that L. L. described the Claimant’s work activity as satisfactory. It is also true that she said the Claimant had the ability to handle the demands of the job. However, L. L. also reported that the Claimant required help from his co-workers and that the Claimant’s limited mobility prevented him from performing many security tasks such as foot patrols.^{Footnote 15} This is consistent with how the Claimant described his job responsibilities. He told me that he simply sat and watched property. His duty was simply to observe and report. In the event of a security issue, he was not required to do anything more than just observe and report. 

[32] Second, the Claimant did not work as a security guard often. He told me he had weeks and sometimes months with no work.  

[33] Third, L. L. described the Claimant’s attendance as “fair”.^{Footnote 16} This tells me that the Claimant had some attendance issues. The Claimant also had attendance issues when he assisted his wife with her job at Canada Post. The Claimant’s spouse told me that there were many days when the Claimant was just too sore to help her. This is despite the fact that his sole responsibility was to drive the vehicle. Given this evidence, it is unlikely the Claimant had the capacity regularly to pursue a substantially gainful occupation.  

[34] Fourth, the Claimant’s income in and after 2014 was not substantially gainful. In fact, his income was not even close to being substantially gainful. The CPP Regulations say that “substantially gainful” means a salary or wages equal to or greater than the maximum annual amount a person could receive as a disability pension. The table below shows the Claimant’s earnings from 2014 to 2017, and it shows what the corresponding substantially gainful threshold is (as prescribed by Regulation).

Medical advice – the Claimant has a reasonable explanation for missing some physiotherapy appointments

[35] To receive disability benefits, a claimant must follow medical advice.^{Footnote 18} If a claimant doesn’t follow medical advice, then he must have a reasonable explanation for not doing so.^{Footnote 19}

[36] The medical evidence suggests that the Claimant was not compliant with a physiotherapy program. In this regard, a physiotherapist wrote in January 2017 that the Claimant had multiple cancelled appointments.^{Footnote 20}  

[37] By way of background, the Claimant explained that he was sent to physiotherapy because he was short of breath even while sitting and his back was going out on him. The physiotherapy was to help get him moving so that he could avoid having to use a wheelchair.

[38] I asked the Claimant about the cancelled appointments. He explained that his mother had dementia at the time, and he was helping to take her to her appointments, and some of those appointments conflicted with his own physiotherapy appointments.

[39] I believe the Claimant. I note there is mention in the medical evidence of his mother (who has since died) having dementia.^{Footnote 21} I also note that the Claimant’s family doctor did not otherwise raise any concerns about the Claimant being non-compliant with treatment. In fact, his doctor noted that the Claimant has made every effort to deal with his obesity.^{Footnote 22}

[40] Because the Claimant has given a reasonable explanation for not completing the physiotherapy program, it does not matter that he did not finish it.

The Claimant’s disability was severe by December 31, 2014

[41] The Claimant’s disability was severe by December 31, 2014.

[42] First, Dr. Petrini reported in July 2016 that the Claimant had extreme difficulty with day-to-day activities, and he described the Claimant as severely disabled.^{Footnote 23} Although the report was written about 1.5 years after December 2014, it is reasonable to infer that the doctor would have held the same opinion in 2014. He wrote that the obesity alone was disabling, and it is clear the obesity was in existence before the end of 2014. On top of that, the Claimant had significant respiratory limitations. Dr. Petrini’s opinion is deserving of weight. Dr. Petrini began treating the Claimant in 2001 and so he was well positioned to comment on the Claimant’s functionality. Also, there is no other medical report on record that contradicts Dr. Petrini’s opinion.

[43] Second, the Claimant impressed me as someone who wanted to work. He told me he never wanted to be a burden on the system or to his wife. He tried his best to work when he could because he had three kids to support and a home to pay for. I believe that if the Claimant was capable regularly of pursuing a substantially gainful occupation in 2014 then he would have been doing so.

[44] Third, in and around 2014, the Claimant was already working at jobs that were very sedentary and even then he was struggling and unable to earn a substantially gainful income.

[45] When I am deciding whether the Claimant can work, I can’t just look at his medical conditions and how they affect what he can do. I must also consider factors such as his:

• age
• level of education
• language abilities
• past work and life experience

[46] These factors help me decide whether the Claimant can work in the real world—in other words, whether it is realistic to say that he can work.^{Footnote 24}

[47] I acknowledge that the Claimant had favourable employment attributes in 2014. After all, he was only 47 years of age in December 2014 and so he had many more years before the standard age of retirement. He also had a reasonable level of education, including a high school diploma and a certificate in hospitality management.^{Footnote 25} Finally, he had years of work experience as both a security guard and a driver for Canada Post.

[48] Despite all of these attributes, I am unable to find that the Claimant had the capacity regularly to pursue a substantially gainful occupation by December 31, 2014.

The Claimant’s disability was prolonged by December 31, 2014

[49] The evidence shows that the Claimant’s disability was prolonged by December 31, 2014.

[50] The Claimant’s spouse testified that the Claimant’s health began to deteriorate in the mid-1990s. Since then, it seems only to have gotten worse.

[51] By the mid 2000s, the Claimant had given up his regular job with Canada Post. He gave that position up because he could not handle the demands of the job. He has made efforts to work since then, but his efforts are not indicative of a capacity regularly to pursue a substantially gainful occupation.    

[52] In July 2016, Dr. Petrini reported the Claimant’s prognosis as “very poor”.^{Footnote 26} A few years later, the Claimant was diagnosed with chronic kidney disease and was put on dialysis.

[53] Throughout all of this, and particularly before December 2014, there was no indication from the doctors on record that the Claimant’s disability was likely to improve.

When payments start

[54] Because the Claimant’s health deteriorated over several years, it is hard to say for certain when the disability became severe and prolonged. However, I am satisfied that it was likely severe and prolonged by July 2013. This is when Dr. Kify wrote that the Claimant was quite limited because of his morbid obesity and arthritis and had limited walking tolerance as well as an inability to climb stairs.^{Footnote 27}

[55] Although the Claimant was disabled before December 2014, he is unable to receive benefits from that time. This is because the Canada Pension Plan legislation says a claimant can’t be considered disabled more than 15 months before the Minister receives their application for disability benefits.^{Footnote 28} After that, there is a four-month waiting period before payments start.^{Footnote 29}

[56] The Claimant is deemed disabled in January 2019 (15 months before his application of April 2020). His benefits start as of May 2019 (4 months after January 2019).

[57] I know the Claimant and his spouse spoke of an application made back in 2016. However, that application is not included in the appeal file, although the CPP medical report is. More importantly though, I only have jurisdiction on applications that have been appealed to the Tribunal, after the Minister has issued an initial decision and a  reconsideration decision on that application. The only application that I can consider in this appeal is the application of April 2020.

Conclusion

[58] I find that the Claimant is eligible for CPP disability benefits because his disability was severe and prolonged by December 31, 2014.

[59] This means the appeal is allowed.