Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, N. Y., is not eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal.

Overview

[2] The Claimant is currently a 61-year-old woman. She worked as a bank loan administrator for 20 years and stopped working in 1999 because she was making numerous errors in her work costing the bank money. She has multiple sclerosis (MS) and is claiming that the cognitive issues are symptom of the MS that caused her problems at work, and have made her unable to work since 1999. At the hearings she claimed MS and the cognitive issues along with mood symptoms that prevent her from working.

[3] The Claimant has applied four times for a CPP disability benefit. Her MQP^{Footnote 1} has been the same date for every application. She applied on July 24, 2001 and was denied; November 24, 2003 and was denied; July 30, 2007 and was denied; and, currently on July 25, 2018. This appeal is for the last application.

[4] The Claimant applied for a CPP disability pension on July 25, 2018. The Minister of Employment and Social Development (Minister) refused her application because the neurologist Dr. Myles opined there was no physical disability, and that the MS had been inactive for three and a half years. In 2018 she had a normal result in screening tests for cognitive functioning. The Claimant appealed that decision to the Social Security Tribunal’s General Division.

What the Claimant must prove

[5] For the Claimant to succeed, she must prove she has a disability that was severe and prolonged by December 31, 2001. This date is based on her contributions to the CPP^{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}

[7] The Claimant has to prove it is more likely than not she is disabled.

Reasons for my decision

The Claimant’s disability was not severe

The Claimant’s limitations do not affect her ability to work

[8] The Claimant had MS and cognitive issues at the time of her MQP. My focus though is not on the Claimant’s diagnosis.^{Footnote 5} I must focus on whether she had functional limitations that got in the way of her earning a living.^{Footnote 6} This means I have to look at all the Claimant’s medical conditions (not just the main one) and think about how her conditions affect her ability to work.^{Footnote 7}

[9] I find the Claimant did not have functional limitations. Here is what I considered.

What the Claimant says about her limitations

[10] The Claimant says she has limitations from her medical conditions that affect her ability to work in the following ways.

1. a) She has a bad memory from her MS.
2. b) At the time of her MQP, she was stressed but not depressed. She became depressed after she lost her job, and did not want to go on any anti-depressants.
3. c) She had numbness in her hands and was prescribed wrist splints that she still wears three to four times a week.
4. d) Her leg goes numb if she sits too long and she must walk around for a bit. It has not worsened since 2001 but it has not improved either. She is unable to stand for long period.
5. e) She must pace herself and gets frustrated due to her weaknesses.
6. f) She is too afraid of being labelled due to her MS and therefore has not tried to find gainful employment.

What the medical evidence says about the Claimant’s limitations

[11] The Claimant must provide objective medical evidence that shows her functional limitations affected her ability to work by December 31, 2001.^{Footnote 8} The medical evidence does not support what the Claimant says.

[12] If the medical evidence does not prove that her functional limitations affected her ability to work by December 31, 2001, medical evidence dated after is irrelevant. Reports written afterward must be based on clinical observations or assessments by December 31, 2001.^{Footnote 9}

Depression and mood symptoms

[13] The Claimant stated that in 2001 she was stressed, not depressed, and would snap at people. The medical evidence shows in 1999 she scored very low on the Beck depression scale and depression was not an issue.^{Footnote 10} Dr. Bailey, her family physician, wanted a full psychological assessment of her mental abilities. At the time he gave her a guarded prognosis to see if there was an element of anxiety/depression, and if she may respond to specific treatment.^{Footnote 11} She saw psychiatrist Dr. Reesal in November 1999, and he found no major psychiatric disorder. He noted she may be at risk for depression should her cognitive symptoms not improve.^{Footnote 12} In November, 1999, Dr. Roberts reported that Dr. Reesal did not find any depression and therefore treatment was not relevant.

[14] In 2001 the Claimant was taking Vioxx,^{Footnote 13} a discontinued pain medication. She claimed it was also for depression, however, in her application of 2001, she noted she took it when her back pain was bad. She testified that she also only took it for six months. She did not get any psychological treatments in 2001. Neurologist, Dr. Myles, prescribed Elavil at bedtime to improve her sleep, and not as an anti-depressant.^{Footnote 14}

[15] The first mention of depression is in 2007.^{Footnote 15} Unfortunately her husband had passed away due to illness in late 2006. Dr. Bailey put her on Venlafaxine. She testified that she did not want to go on any drugs, however took the Venlafaxine for nine months until she felt better. She did not go on any other medications for depression until 2018, when she started Prozac^{Footnote 16}.

[16] The evidence does not support any severe depression or anxiety or “mood condition” that would prevent her from working in 2001.

Bilateral leg weakness, wrist and back spasms

[17] In the application the Claimant stated she cannot work due to bilateral leg weakness.^{Footnote 17} In her request for reconsideration of the 2001 application, she noted that her leg is the issue. Therefore, there was an issue with her leg at the time of her MQP.

[18] Dr. Bailey noted in her 2001 medical report^{Footnote 18} that she had increasing weakness in her lower extremities, but did not indicate any treatments or specialist interventions. It has already been noted she took Vioxx for a few months in 2001 when her back spasms were bad, but there was no mention of bilateral leg weakness in her 2001 CPP disability application. In her request for reconsideration of the 2001 application, she notes taking Baclofen for one month^{Footnote 19}. In that letter, the Claimant indicated she required an annual medical to renew her licence because she is prohibited from driving a standard vehicle. She testified that this was because her left leg cannot push a clutch. I note, however, that she continues to have a drivers licence, and is able to drive two hours as she testified. The evidence shows she has leg weakness and pain, however it does not support a severe disability that would prevent her from working.

[19] Dr. Myles saw her one-time in June 2001 and indicated there were no physical disabilities.^{Footnote 20} Dr. Myles also provided her with the prescription for wrist splints to wear for eight weeks. This was a result of the nerve condition study which showed mild median nerve dysfunction of the bilateral wrists.^{Footnote 21}

[20] Despite the Claimant stating she continues to use her wrist splints, there is no evidence to support a severe condition of her wrists in 2001 that would prevent her from working. Despite her testimony that she is unable to sit, or stand for long and must go down the stairs on her buttocks, the evidence does not support any physical disabilities of her legs or back that would prevent her from working in 2001.

[21] I also recognize that the Claimant did not stop working because of any limitations with her legs, back or wrists.

MS

[22] The medical evidence supports that she has MS. I do dispute this.

[23] Neurologist Dr. Roberts noted in March 1998^{Footnote 22} that her MS was well documented and definite, in part due to an attack of optic neuritis and facial sensory disturbances of which she made a good recovery.^{Footnote 23} Dr. Bailey, family physician, requested Dr. Myles’s provide a second opinion on the management of her MS. Dr. Myles found her history was suggestive of MS but there were insufficient abnormalities to confirm a definite diagnosis. At the time of the assessment, in June 2001, there was virtually no residual disability.

[24] Dr. Myles stated that MS is a relapsing-remitting disease, meaning there are periods of exacerbation when the symptoms present themselves. Dr. Myles noted that her disease had been relatively inactive with relapses separated by three and a half years.

[25] This is one of the reasons the Minister refused the application. While there may be periods of remission, I do not accept the Ministers refusal based on a period of remission for a disease which is a relapsing-remitting disease.

The cognitive issues

[26] Dr. Bailey indicated in a letter to neurologist Dr. Roberts in 1999 that cognitive problems are not usually major part of MS, and as for her symptoms of MS she was not having much difficulty^{Footnote 24}.

[27] It was the Claimants employer, who is not a physician, who suggested the cognitive issues were a symptom of her MS, according to the Claimant. However, the employer indicates it was the Claimant who suggested her memory loss was due to MS. She was sent home on July 14, 1999 by her employer due to repeated errors in her otherwise good work performance over 21 years. The employer indicated she should consult with family physician to work toward rectifying the problem.^{Footnote 25}

[28] The issue then is not that she was unable to work due to any physical issues caused by MS, but due to her cognitive issues.

[29] There is no dispute that the Claimant was making errors at work which caused her to be put on leave from work.

[30] Dr. Bailey asked Dr. Roberts to assess her memory loss and decreased mental abilities in August 1999. The symptoms had been present for six to 12 months.^{Footnote 26} He accepted she had memory loss and was easily confused, and as a result was unable to be involved in complex mental situations. The CT scan he ordered found moderate atrophy in the bilateral frontal and temporal lobe^{Footnote 27}. He indicated this is a non-treatment medical condition whereby she had not reached maximum medical improvement. She required a full psychological assessment to get a better picture of her mental health.^{Footnote 28}

[31] She had an independent psychiatric medical examination with Dr. Reesal in November 1999^{Footnote 29}. He found some cognitive impairment of trouble with her memory, decision making and cognitive functioning involving her verbal and math skills. He recommended she obtain increased support from an MS group. He also suggested she see a neurologist.

[32] Dr. Roberts also found neuropsychological testing would be beneficial^{Footnote 30}. There is no indication this took place. There are no further specialist reports in 2000. Dr. Myles noted years later that there was no neuropsychological test done to confirm a disabling cognitive impairment^{Footnote 31}. However, Dr. Roberts did note that in patients with definite MS, the most likely explanation for her mental dysfunction would be dementia associated with MS.

[33] I accept Dr. Roberts’s explanation, as he is a specialist, that her memory, and cognitive issues are a symptom of MS. It has been determined the MS is a remitting-relapsing disease. The following evidence does not show that the cognitive issues affected her ability to work at any occupation, or that she has a severe cognitive impairment. The evidence shows she has a mild cognitive condition since 1999 which had remained mild to normal by 2018.

[34] Dr. Reesal and Dr. Roberts strongly agreed that due to her cognitive deficits, she was not fit for part-time or full-time work at a bank, and would likely not return to her old job. ^{Footnote 32}

[35] I accept she was determined by the specialists unable to return to her previous job in a bank. This is not the same as being unable to work at any occupation.

[36] The Claimant was no longer under the care of Dr. Roberts by 2001.^{Footnote 33} Dr. Reesal diagnosed a mild cognitive impairment in 1999^{Footnote 34}. In the medical report to support this application, Dr. Bailey found she had a mild cognitive impairment in 2018. He also noted that the Claimant claims to have a cognitive impairment but scored normal on two cognitive functioning tests. The Claimant stated the nurse helped her with the testing. While there is no evidence to support this, it is unlikely the nurse would have skewed the test to provide the Claimant with a normal score if she had a severe cognitive condition.

[37] The medical evidence supports a mild cognitive impairment in 1999 and normal cognitive functioning in 2018.

[38] The Claimant is relying upon Dr. Bailey’s physician statement to the employer regarding her ability to work. In February 2002^{Footnote 35} he noted she would be suitable for trial employment. As this statement was made just after her MQP, it is relevant to her capacity to work at the time of her MQP. The Claimant stated she told him she wanted to try something but was worried about getting a job and getting fired. If there is evidence of work capacity, the Claimant must try to work and prove she cannot due to her condition^{Footnote 36}. Finding and keeping a job includes re-training or looking for a job that accommodates her limitations.^{Footnote 37} The Claimant did not do this. Her fear of being fired or not getting the job is not relevant to an inability to work due to her condition.

[39] The Claimant relies upon the next physician statement from Dr. Bailey in June 2003^{Footnote 38} where he indicates that she is unemployable. This was when her husband first became sick, and she testified that she deteriorated during that time. I accept this stress would exacerbate her condition. The Claimant is asking me to find Dr. Bailey is stating she is unable to work at any job in 2003, after her MQP. There is no medical evidence to support an inability to work at any job for either physical or mental health reasons. The statement is meant specifically for her employer at the bank. I find it is more likely Dr. Bailey is making this statement to the employer with reference to her being employable at the bank. This is supported by the specialists, Dr. Reesal and Dr. Roberts’s opinions prior to her MQP.

[40] The medical evidence does not show the Claimant had functional limitations that affected her ability to work at any occupation by December 31, 2001. As a result, she has not proven that she had a severe disability.

[41] When I am deciding if a disability is severe, I sometimes have to think about a person’s age, level of education, language ability, and past work and life experience. This allows a realistic assessment of their work capacity.^{Footnote 39} I don’t have to do that here because the Claimant’s functional limitations did not affect her ability to work by December 31, 2001. This means she did not prove her disability was severe by then.^{Footnote 40}

Conclusion

[42] I find the Claimant is not eligible for a CPP disability pension because her disability is not severe. Because I found the disability is not severe, I did not have to consider if it is prolonged.

[43] The appeal is dismissed.