Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Appellant, P. B., 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 46 years old as of September 30, 2016. She was born and educated in India. She moved to Canada in 1993. She took an esthetics course in Canada. She has worked in a variety of jobs, including factory work, Tim Horton’s, receptionist, and school bus driver. She has a number of health problems, including vertigo, dizziness, disturbed sleep, low energy, fatigue, migraines, left-sided body pain, diabetes, high blood pressure, thyroid problems, complications from brain hemorrhage, depression, and anxiety. She wrote in her CPP disability questionnaire that she could no longer work as of February 2019 due to dizziness.

[4] The Appellant applied for a CPP disability pension on December 23, 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. Her physical conditions include vertigo, dizziness, disturbed sleep, low energy, fatigue, migraines, left-sided pain in her body, diabetes, high blood pressure, thyroid problems, and complications from brain hemorrhage. Her psychological conditions include depression, anxiety, disturbed sleep, difficulty remembering and concentrating. She has limited education, work experience, and ability to function in English.

[6] The Minister says that the evidence does not support a determination that she was disabled within the meaning of the CPP on or prior to December 31, 2015 or as of September 30, 2016. The evidence does not show any severe pathology or impairment that would have prevented her from performing suitable work when she last qualified. She self-reported work activity after December 31, 2015 and September 30, 2016. This does not support an incapacity for all work activity. Where there is evidence of work capacity, a claimant must show that efforts at obtaining and maintaining employment have been unsuccessful by reason of a medical condition. It is irrelevant that her condition deteriorated after December 31, 2015 and September 30, 2016.

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, 2015. This date is based on her contributions to the CPP.^{Footnote 1}

[8] The Appellant had CPP contributions in 2016 that were below the minimum amount the CPP accepts. These contributions let the Appellant qualify for a pension if she became disabled between January 1, 2016 and September 30, 2016.^{Footnote 2}

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

[10] A disability is severe if it makes a Appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 3}

[11] 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.

[12] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 4}

[13] 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.

[14] 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.

Matter I have to consider first

[15] There was a Punjabi-speaking interpreter assisting with interpretation during the hearing. However, the interpreter dropped off the teleconference during the Appellant’s Representative’s submissions. The Tribunal attempted to contact the interpreter without success. The Appellant’s Representative advised that he and the Appellant wanted to proceed with completing the hearing. He speaks Punjabi and interpreted his submissions and the Tribunal’s closing statements for the Appellant.

Reasons for my decision

[16] I find that the Appellant hasn’t proven she had a severe and prolonged disability by December 31, 2015 or in 2016 by September 30, 2016.

Was the Appellant’s disability severe?

[17] 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 didn’t affect her ability to work as of December 31, 2015 or in 2016 by September 30, 2016.

[18] The Appellant has numerous diagnoses, including:

• Dizziness
• Vertigo
• Migraines
• Pain
• Type 2 Diabetes Mellitus
• High blood pressure
• Hypothyroidism
• Anxiety
• Depression

[19] However, I can’t focus on the Appellant’s diagnoses.^{Footnote 5} Instead, I must focus on whether she had functional limitations that got in the way of her earning a living.^{Footnote 6} 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 7}

[20] I find that the Appellant does have functional limitations that affected her ability to work.

What the Appellant says about her functional limitations

[21] The Appellant says that her medical conditions have resulted in functional limitations that affect her ability to work. She says that her health problems began in approximately 2008, when a blood clot was found in her brain. This led to a brain hemorrhage. She was hospitalized for one month.

[22] In addition, she had dizziness that started just before the blood clot. She was given Serc. She has had migraine headaches since approximately 2010. She was diagnosed with depression and given antidepressant medication, which made her sleepy all the time. She had pain in her body. She has a kidney problem (too much protein).

[23] Despite her health problems, she was able to continue working in a variety of jobs prior to December 31, 2015 and September 30, 2016, including factory work and work at a Tim Horton`s.

[24] From 2014 to 2016, she worked as a school bus driver. She worked for two hours in the morning and two hours in the afternoon. She felt a bit better at that time and was able to do this work. She stopped doing this job because of her migraine problem and because her doctor said she should not be driving after taking medication.

[25] After December 31, 2015 and September 30, 2016, she was self-employed in an esthetics business. Her role was mainly to book appointments for Punjabi-speaking clients. It was a sitting job. She typically worked from 11:00 a.m. to 6:00 p.m. She stopped doing this work when she could no longer sit for long periods of time. She could not provide details about her earnings from this work.

[26] She then worked in an ice cream shop from August 16, 2019 to November 15, 2019. She worked 3 days per week for about 3-4 hours per day. She usually worked about 12-14 hours per week. Her duties included helping to pack orders and cleaning tables. She stopped doing this job because she was not allowed to sit.

[27] Since she stopped working, she stays home most of the time. She cannot lift any weight with her left hand. She has to climb stairs very slowly. Her children and husband do most of the cooking and cleaning. She does not drive. She does not see any improvement in her conditions. She feels she is getting worse.

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

[28] The Appellant must provide some medical evidence that supports that her functional limitations affected her ability to work by December 31, 2015 or in 2016 by September 30, 2016.^{Footnote 8}

[29] The medical evidence doesn’t support that the Claimant’s functional limitations affected her ability to work by December 31, 2015 or in 2016 by September 30, 2016. The medical evidence indicates that the Claimant experienced a significant worsening in her health after December 31, 2015 and September 30, 2016.

[30] The medical reports on file are all dated significantly after December 31, 2015 and September 30, 2016. They include the following.

[31] On December 12, 2019, Dr. Asha Vohra, family physician, completed the CPP Medical Report. Dr. Vohra wrote that the Claimant has had dizziness for the last 15 years. She complains of headaches, light-headedness, presyncope, and unsteadiness. She has sporadic positional vertigo. She is taking Serc, which makes her feel better. Dr. Vohra did not recommend that she stop working, but noted that she left work in February 2019 due to generalized pains all over her body and headaches. She was advised by a neurologist not to drive in October 2019.

[32] This report indicates that the Claimant’s dizziness was controlled by Serc prior to December 31, 2015 and in 2016 by September 30, 2016. It is not until several years after these dates that the Claimant’s dizziness worsened to the point that a neurologist recommended she stop driving. With respect to her pain, there is no detail regarding when her pain began and how it was affecting her ability to work as of December 31, 2015 or in 2016 by September 30, 2016.

[33] Dr. D. Robertson, neurologist, reported on October 22, 2019 that she presented with complaints of dizziness that she says began 15 years ago. At present, she demonstrates evidence for an uncompensated right peripheral vestibulopathy and a history of intermittent benign paroxysmal positional vertigo. Her presentation is a significant contraindication to driving and the Ministry of Transportation was notified. Although Dr. Robertson noted that the Claimant complained of dizziness for the past 15 years, Dr. Robertson’s opinion regarding diagnoses was made with respect to her “present” presentation. There is no information about how her health problems affected her ability to work as of December 31, 2015 or in 2016 by September 30, 2016.

[34] There are multiple medical reports and clinical notes on file from Dr. R. Ganesan, neurologist, including the following:

• On May 13, 2019, it was noted that she still has headaches, but they are not as bad. Her dizziness is worse. Since November 2018, she has had persistent positional vertigo. She has basically closed down her spa and has not been driving since then.
• On November 4, 2019, her dizziness was the same. Her headaches are better (she has them about a couple of times per month). Her principal issue is vestibulopathy.
• On November 8, 2021, her vertigo is better and she is doing much better. She rarely uses Serc. She will be referred to an ENT to make sure there is no concern around driving. She is mainly seeking CPP related to her pain and depression.

[35] The reports from Dr. Ganesan indicate that she experienced a significant worsening in her dizziness and vertigo in November 2018, which is several years after December 31 2015 and September 30, 2016. She was subsequently noted to have experienced a significant improvement in her vertigo in November 2021, to the point that she rarely uses Serc. Her headaches were also noted to have improved as of May 2019. There is no detail regarding how her headaches and dizziness affected her ability to work as of the MQP and prorated period.

[36] Also, Dr. Ganesan noted that she is seeking CPP related to her pain and depression. However, there are no medical reports on file to show that these health problems affected her ability to work as of December 31, 2015 or in 2016 as of September 30, 2016.

[37] It is also evident from the clinical notes on file that she was diagnosed with type 2 diabetes mellitus in November 2020. She was noted to have anxiety and an adjustment disorder/grief in January 2021. A new onset of low back pain was noted in February 2021. In September 2021, she was noted to have started back at work as an esthetician, which requires lots of bending. She was counselled on an ergonomic set-up at work. There is no indication from the clinical notes that the Claimant had functional limitations as of December 31, 2015 or in 2016 as of September 30, 2016.

[38] There are also multiple reports on file from Dr. Sharn Bhandhal, including the following:

• On February 27, 2020, she was noted to have a long history of proteinuria and microscopic hematuria. A renal biopsy is required.
• On October 30, 2020, it is noted that a biopsy showed IgA nephropathy.
• On December 1, 2020, it was noted that her sugars may be the problem regarding her worsening proteinuria.
• On February 18, 2021, she had an improvement in her proteinuria. She has elevated sugars, but has not yet required medication.
• On August 19, 2021, her proteinuria is worsening.

[39] The reports from Dr. Bhandhal show a worsening in the Claimant’s health many years after the MQP and prorate period. There is no indication that this health problem impacted her ability to work as of December 31, 2015 or in 2016 as of September 30, 2016.

[40] Cathy Mazurkiewicz, physiotherapist certified in  vestibular physiotherapy, reported on December 16, 2020 that she has had dizziness for 15 years, but this gradually worsened 2-3 years ago. She has been unable to work for the past 2 years due to her symptoms of intermittent dizziness, lightheadedness, head pressure, nausea, head motion intolerance, and unsteadiness. She demonstrates signs of right sided peripheral vestibular hypofunction.

[41] On March 9, 2021, Ms. Mazurkiewicz noted that she underwent vestibular physiotherapy and noted that her symptoms have resolved except for position changes. She will continue with dynamic balance with home exercises.

[42] These reports confirm that the Claimant’s symptoms of dizziness worsened well passed the MQP and prorate period. They also confirm that the Claimant experienced significant improvement with vestibular physiotherapy.

[43] The medical evidence doesn’t show that the Appellant had functional limitations that affected her ability to work by December 31, 2015 or in 2016 by September 30, 2016. As a result, she hasn’t proven she had a severe disability.

[44] When I am deciding whether a disability is severe, I usually have to consider an appellant’s personal characteristics.

[45] This allows me to realistically assess an appellant’s ability to work.^{Footnote 9}

[46] I don’t have to do that here because the Appellant’s functional limitations didn’t affect her ability to work by December 31, 2015 or in 2016 by September 30, 2016. This means she hasn’t proven her disability was severe by then.^{Footnote 10}

Conclusion

[47] 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.

[48] This means the appeal is dismissed.