Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Appellant, B. F., isn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant was 42 years old as of December 31, 2020. She was working part-time as a merchandiser until November 2018. She stopped working due to pain in her back and leg. She says she has chronic sacroilitis, fibromyalgia, colitis, irritable bowel syndrome (IBS), bulging discs, slight scoliosis, and spinal stenosis. She has not returned to any type of work since she stopped working.

[4] The Appellant applied for a CPP disability pension on Jan 24, 2019. The Minister of Employment and Social Development (Minister) refused her application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Appellant says that she has a severe and prolonged disability. She stopped working due to pain in her back and leg. She has many other health problems. She has not been able to return to work because she does not think there are any jobs she is capable of doing.

[6] The Minister says that the evidence does not support a determination that the Appellant was disabled within the meaning of the CPP by December 31, 2020. While it is recognized that she has some limitations in work capacity because of her pain and mobility issues, these limitations would not preclude her from performing all kinds of work indefinitely. Medical evaluations and investigations did not reveal any significant pathology or disabling findings to support a severe medical condition. Her failure to make an effort to obtain work or retrain, the conservative nature of her treatment and the absence of any significant findings in the investigative report leads to the conclusion that she does not have a severe disability. The pursuit of suitable employment remains a reasonable option when the medical evidence along with her age, education and transferrable skills are considered.

What the Appellant must prove

[7] For the Appellant to succeed, she must prove she had a disability that was severe and prolonged by December 31, 2020. This date is based on her contributions to the CPP.^{Footnote 1}

[8] The Canada Pension Plan defines “severe” and “prolonged.”

[9] A disability is severe if it makes an Appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[10] This means I have to look at all of the Appellant’s medical conditions together to see what effect they have on her ability to work. I also have to look at her background (including her age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether her disability is severe. If the Appellant is able to regularly do some kind of work that she could earn a living from, then she isn’t entitled to a disability pension.

[11] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 3}

[12] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep the Appellant out of the workforce for a long time.

[13] The Appellant has to prove she has a severe and prolonged disability. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not she is disabled.

Reasons for my decision

[14] I find that the Appellant hasn’t proven she had a severe and prolonged disability by December 31, 2020.

Was the Appellant’s disability severe?

[15] The Appellant’s disability wasn’t severe. I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations do affect her ability to work in physically demanding jobs

[16] The Appellant’s medical conditions include:

• Chronic lower back pain;
• Spinal stenosis;
• Right leg sciatica;
• Chronic sacroilitis; and
• Colitis.

[17] However, I can’t focus on the Appellant’s diagnoses.^{Footnote 4} Instead, I must focus on whether she had functional limitations that got in the way of her earning a living.^{Footnote 5} When I do this, I have to look at all of the Appellant’s medical conditions (not just the main one) and think about how they affect her ability to work.^{Footnote 6}

[18] I find that the Appellant has functional limitations that affect her ability to do physically-demanding work.

What the Appellant says about her functional limitations

[19] The Appellant says that her medical conditions have resulted in functional limitations that affect her ability to work. She was born blind in one eye, but was able to work for many years with this condition.

[20] In the summer of 2018, she started to have episodes of vertigo. These episodes seem to worsen in the summer and spring. She takes medication as needed, which she finds helpful. She does not leave the house when she has vertigo. She has not lost her license because of vertigo.

[21] In September 2018, she developed pain in her back and right leg following an incident in which her son pushed a cart into her leg. Since then she has had pain in her back and right leg.

[22] She worked part-time as a merchandiser from November 20, 2018 until November 28, 2018. Her duties included store visits, inventory checks, and writing audits. According to the CPP Employer’s Questionnaire, she stopped working to focus on her health following receipt of MRI results. The Appellant explained that there is no way she could have continued to do this job because it involved lots of walking and lifting.

[23] She was told she has spinal stenosis, disc bulging, and osteoarthritis. She has other health problems as well. In June 2019, she went to the emergency room with what she thought was irritable bowel syndrome. However, she learned that she has colitis. She was given medication that helps with cramping.

[24] In 2020, she learned that she has uterine fibroids. She continues to have abnormal bleeding from time to time from this condition. She sometimes gets very tired due to a drop in her iron. Her symptoms have gotten much worse in the last six months.

[25] In addition, she has had several episodes of IBS since her colitis attack. She has sleep apnea. She has carpal tunnel syndrome with symptoms of pins and needles sensation in her hands and fingers. She wears a brace to bed, which she finds helpful.

What the medical evidence says about the Appellant’s functional limitations

[26] The Appellant must provide some medical evidence that supports that her functional limitations affected her ability to work by December 31, 2020.^{Footnote 7}

[27] The medical evidence supports that the Appellant is unable to work in physically-demanding jobs, including her job as a merchandiser, which involved prolonged walking and heavy lifting.

[28] The CPP Medical Report was completed on March 4, 2019 by Dr. Robert Ames, family physician. The Appellant’s diagnoses were listed as spinal stenosis, right leg sciatica, and chronic sacroilitis. She was noted to have chronic lower back pain and right leg pain. She has limitations with walking, stooping, and bending over.

[29] Dr. Mark Foullong, chiropractor, reported on November 21, 2017 that she has osteoarthritic changes at C5 level and at L3-L5 levels in lower back. She has vertebral subluxation degeneration.

[30] Dr. Abraham Chaiton, rheumatologist, reported on June 6, 2018 that she has mechanical back pain. She also has occasional discomfort in her right leg.

[31] On August 21, 2018, Dr. Layla Safinia, neurologist, wrote that she suffered an accidental injury to the right shin when her son hit her with a shopping car. She got only a small bruise. Ever since, she has been experiencing pain in the right buttocks with radiation down to the leg. She also has lower back pain. She was referred to Dr. Anna Czok.

[32] Dr. Anna Czok, physical medicine and rehabilitation, reported on October 23, 2018 that she has a one year history of right buttocks and right leg pain. On January 15, 2019, Dr. Czok wrote that she has clinical and radiographical evidence of sacroilitis. She was referred to a rheumatologist.

[33] Dr. James Seligman, orthopedic surgeon, reported on December 13, 2018 that she presented with right-sided lower back and right leg pain for approximately one year. She has right-sided sacroiliaic pain. An MRI on December 17, 2018 showed degenerative changes in the lower lumbar spine and mild narrowing of the spinal canal at L4-5.

[34] Dr. Samuel Silverberg, internal medicine, reported on March 6, 2018 that she has had pain in her lower back and both buttocks with radiation down the right lower extremity for the last 18 months. She has returned to her heavy lifting job, which includes stocking shelves with 50 lbs of merchandise. Her pain increases when she bends over to lift at work. She likely has a combination of mechanical low back pain and inflammatory low back pain. She was asked to stop performing bending and lifting jobs.

[35] Dr. Silverberg reported again on July 2, 2019. She was noted to have a combination of lumbosacral osteoarthritis and inflammatory sacroiliac disease, which are both contributing to her low back pain. She was strongly advised against continuing her present bending and lifting job.

[36] These reports from Dr. Silverberg support that the Appellant could no longer work in the physically-demanding job that she was doing as a merchandiser. However, she would not be prevented from alternate work within her limitations.

[37] With respect to her colitis, there is a CT of the abdomen and pelvis dated July 17, 2018 that is compatible with colitis. In addition, a pelvic and transvaginal ultrasound dated August 15, 2020 showed small uterine fibroids. There are no medical reports that support that these conditions impacted her ability to work.

[38] The medical evidence supports that the Appellant’s difficulty walking, bending, stopping, and lifting prevented her from doing physically-demanding jobs, including the job she was doing as a merchandiser, which involved prolonged walking and heavy lifting.

[39] I now have to decide whether the Appellant can regularly do other types of work. To be severe, the Appellant’s functional limitations must prevent her from earning a living at any type of work, not just her usual job.^{Footnote 8}

The Appellant can work in the real world

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

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

[41] These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that she can work.^{Footnote 9}

[42] In this case, the Appellant was 42 years old as of December 31, 2020. She has a grade 12 education. She has worked as a sales associate, retail manager, office worker, and merchandiser. She has also worked at an indoor playground.

[43] I find that the Appellant is unable to continue working as a merchandiser or doing physically demanding jobs that require prolonged walking, bending, stooping, or heavy lifting. However, she would not be precluded from lighter work or sedentary work. She has sedentary work experience. She is also a candidate for retraining when her age is considered. I do not accept that her functional limitations would prevent her from attempting lighter work, sedentary work, or retraining for these types of jobs. I therefore cannot find that she was unemployable in a real world context as of December 31, 2020.

[44] I find that the Appellant can work in the real world.

The Appellant didn’t to find and keep a suitable job

[45] If the Appellant can work in the real world, she must show that she tried to find and keep a job. She must also show her efforts weren’t successful because of her medical conditions.^{Footnote 10} Finding and keeping a job includes retraining or looking for a job she can do with her functional limitations.^{Footnote 11}

[46] The Appellant didn’t make efforts to work in a suitable job. She has not looked for or attempted any other type of work within her limitations. She has not tried to retrain for any other types of work.

[47] Therefore, I can’t find she had a severe disability by December 31, 2020.

Conclusion

[48] I find that the Appellant isn’t eligible for a CPP disability pension because her disability wasn’t severe. Because I have found that her disability wasn’t severe, I didn’t have to consider whether it was prolonged.

[49] This means the appeal is dismissed.