Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

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

Overview

[3] The Appellant is 41 years old. He last worked as a safety coordinator. He has had multiple surgeries, notably ear surgery and emergency heart surgery in approximately 1991; heart surgery in 1999; and heart surgery in March 2018. He tried going back to his job as a safety coordinator in June 2018, but went on long-term disability in October 2018.^{Footnote 1} He hasn’t worked since then.

[4] The Appellant applied for a CPP disability pension on March 25, 2020. He based his application on anxiety and a number of physical conditions. The Minister of Employment and Social Development (Minister) refused his application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Appellant says his medical conditions make him unable to work at all.

[6] The Minister says the medical evidence doesn’t support that the Appellant’s medical conditions are as severe as he says. There isn’t evidence that he has tried certain treatments, or evidence of what impact they have had. The Minister believes that he can still work, but he hasn’t tried.

What the Appellant must prove

[7] For the Appellant to succeed, he must prove he has a disability that was severe and prolonged by December 31, 2019. This date is based on his contributions to the CPP.^{Footnote 2}

[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 3}

[10] This means I must look at all of the Appellant’s medical conditions together to see what effect they have on his ability to work. I must also look at his background (including his age, level of education, language abilities, and past work and life experience). This is so I can get a realistic or “real world” picture of whether his disability is severe. If the Appellant is regularly able to do some kind of work that he could earn a living from, then he 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 4}

[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 must prove he has a severe and prolonged disability. He must prove this on a balance of probabilities. This means he must show that it is more likely than not he is disabled.

Matters I have to consider first

I accepted the Appellant’s late document

[14] The day before the hearing, the Appellant sent in a six-page document responding to the Minister’s submissions.^{Footnote 5} Although it was submitted late, I accepted it because it contained only information that he could have said at the hearing anyway.

Reasons for my decision

[15] I find that the Appellant hasn’t proven he had a severe and prolonged disability by December 31, 2019.

Was the Appellant’s disability severe?

[16] The Appellant’s disability wasn’t severe by December 31, 2019. I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations affected his ability to work

[17] The Appellant has anxiety and various physical medical conditions. However, I can’t focus on the Appellant’s diagnoses.^{Footnote 6} Instead, I must focus on whether he has functional limitations that got in the way of him earning a living by December 31, 2019.^{Footnote 7} When I do this, I must look at all of the Appellant’s medical conditions (not just the main one) and think about how they affected his ability to work.^{Footnote 8}

[18] I find that the Appellant had functional limitations by December 31, 2019.

What the evidence says about the Appellant’s functional limitations

[19] The Appellant says his medical conditions have resulted in functional limitations that affected his ability to work by December 31, 2019. He must provide some medical evidence that supports this.^{Footnote 9} I will now consider what the evidence as a whole says about each of his medical conditions and functional limitations.

The 1991 surgery

[20] In approximately 1991, when the Appellant was 10 years old, he had ear surgery, followed by emergency heart surgery. At that time, the doctors discovered that he had a heart condition. His heart condition is stable.^{Footnote 10}

[21] The Appellant says his left ear drum was punctured during ear surgery. As a result, loud noises, and noises at a certain frequency, are painful. So he often wears earplugs or earmuffs.^{Footnote 11}

[22] The earliest medical evidence that the Appellant provided to the Tribunal is from January 2017.^{Footnote 12} There is no medical evidence around the date of the surgery itself. However, I accept the Appellant’s account of what happened.

The 1999 surgery

[23] In 1999, a few weeks before the Appellant’s 18th birthday, he had another heart surgery. During that surgery, his vocal cords were injured, his left radial nerve was pinched when a surgeon was restraining his arm, and he got lesions on his scalp. He says he also suffered other nerve damage extending to his feet, elbow, shoulder, and back. He developed chest pain.

[24] As a result, he says:

• His voice cracks if he talks for an hour.
• He has carpal tunnel syndrome in his left hand (he is right-handed). He can pull with his hand, but he can’t push. He can push keys on a keyboard, but it is more difficult to lift them again. So he types slowly.
• Due to lesions on his scalp, wearing headgear is uncomfortable.
• His stamina is generally limited. Together with chronic pain, this impacts his ability to sit, climb stairs, kneel, bend, lift, and carry. His shoulder hurts when he walks.

[25] Again, there is no medical evidence around the date of surgery. However, I accept what the Appellant says about his voice and wearing headgear because these limitations are related to specific details of his surgery, which I take as reliable. There is no evidence to contradict them. I don’t believe that a lack of comfort while wearing headgear is a functional limitation, though; he wore headgear as a safety coordinator.^{Footnote 13}

[26] I believe that the Appellant’s carpal tunnel syndrome has been an issue since before December 31, 2019, although not a consistent one. After surgery, the Appellant went through therapy to restore some function to his nerve.^{Footnote 14} Many years later, his family doctor, Dr. El‑Hajj, wrote in December 2018 that carpal tunnel syndrome had been an issue for “a few years.”^{Footnote 15} There is no other mention of this issue in the medical evidence.

[27] The Appellant believes that high blood pressure also contributes to his poor stamina and physical limitations. I will address high blood pressure next.

High blood pressure

[28] At age 24, the Appellant was diagnosed with high blood pressure. He says it causes constant headaches, as well as kaleidoscope migraines once or twice per week, with blurred vision. It makes him irritable, weak, and short of breath on exertion.

[29] There is little medical evidence to support what the Appellant says about the effects of his high blood pressure.

[30] I don’t accept that the Appellant had headaches or migraines that interfered with his ability to work by December 31, 2019. In July 2020 (after December 31, 2019), he told his neurologist, Dr. Jeerakathil, that he had headaches and migraines which were getting worse. However, a CT scan of his head came back normal.^{Footnote 16} There is no other mention of headaches or migraines in any of the medical evidence.

[31] Similarly, I don’t accept that he struggles with irritability or other difficulties dealing with people, at least not as a result of his medical conditions. In September 2020, he told his cardiologist, Dr. Taylor, that he became irritable upon exertion.^{Footnote 17} But there is no other mention of irritability or of difficulty dealing with people in the rest of the medical evidence. There are no objective observations to support what the Appellant says.

[32] I don’t accept that his stamina and other physical limitations are as extensive as the Appellant reports either. He reported being weak and short of breath to Dr. El‑Hajj, but Dr. Taylor believes he can (and should) still participate in fitness activities. Dr. El‑Hajj only identified climbing stairs, walking long distances, and lifting more than 15 pounds as problematic. Despite testifying that he can’t do any form of exercise beyond stretching and taking short walks, the Appellant told Dr. Jeerakathil that he was doing jiu-jitsu “moderately” with one of his sons.^{Footnote 18}

[33] The limitations reflected in the medical evidence are inconsistent with the severity that the Appellant and his family members describe.^{Footnote 19} It isn’t necessary for medical evidence to specifically list every functional limitation that an appellant claims to have.^{Footnote 20} At the same time, I believe that what medical evidence does not say can itself be relevant, especially where an appellant reports having extensive limitations.

[34] I don’t see evidence of those limitations here, either in terms of the treatments pursued or in the objective observations of the Appellant’s doctors. While pain is a subjective experience, weakness and shortness of breath can be measured objectively. I place considerable weight on Dr. El-Hajj’s objective assessment, which only lists stairs, walking, and lifting over 15 pounds as functional limitations.

The 2018 surgery

[35] In 2018, the Appellant had a heart valve put in and he was started on warfarin.

[36] He says the ticking of the valve keeps him awake, interrupts his focus, and makes him self-conscious around other people. He doesn’t sleep for days at a time and he is anxious about leaving the house. The warfarin makes him bruise easily and bleed uncontrollably if he is injured. He has trouble thinking of the right words to say in conversations (referred to as “difficulty wordfinding”). His short-term memory is poor. He can’t remember the safety codes that he used to work with.

[37] He has spoken with his doctors about having trouble sleeping and being fatigued, and I accept that those are issues for him.^{Footnote 21} At the same time, I think the Appellant exaggerated how little sleep he gets. He testified that he doesn’t sleep at all for a few days at a time. Despite this, as I will discuss later, he was able to work full-time hours for about five months. I don’t think he could have worked full-time hours for an extended period of time on so little sleep.

[38] I accept that the ticking of his heart valve impacts his focus.

[39] He was diagnosed with anxiety in September 2019.^{Footnote 22} So I accept that he is anxious around other people.

[40] He is on warfarin. However, a tendency to bruise or bleed uncontrollably if injured isn’t a limitation that would interfere with his ability to work.

[41] The medical evidence doesn’t support what the Appellant says about wordfinding or poor memory. Dr. Jeerakathil found no objective evidence of these issues. The Appellant’s neurological exam was normal even though he declined to finish the test. In addition, he continued to do “complex cognitive tasks such as composing music for multiple instruments.” Dr. Jeerakathil concluded that there might be “at least a mild additive effect” on his memory from multiple surgeries, but ultimately his symptoms were subjective and likely due to anxiety.^{Footnote 23} When I consider Dr. Jeerakathil’s report as a whole, I find that the Appellant has a mildly poor memory, but no difficulties wordfinding—Dr. Jeerakathil would have observed that if that was an issue.

Other medical conditions

[42] The Appellant says he has irritable bowel syndrome and obsessive-compulsive disorder (or tendencies).^{Footnote 24} There is no medical evidence of these issues. So I don’t accept that he has them.

Summary of my findings about the Appellant’s functional limitations

[43] In summary, I find that the Appellant has had the following functional limitations since December 31, 2019:

• He is sensitive to loud noises and noises at certain frequencies.
• His voice cracks if he talks for an hour.
• He can’t push with his left hand (sometimes).
• He types slowly and can’t type for a long time (sometimes).
• He has trouble climbing stairs.
• He can’t walk long distances.
• He can’t lift or carry more than 15 pounds.
• He is fatigued.
• He has trouble focusing.
• He is anxious around other people.
• His short-term memory is mildly impacted.

[44] Next, I will look at whether the Appellant has followed medical advice.

The Appellant hasn’t followed all medical advice

[45] To receive a disability pension, an appellant must follow medical advice.^{Footnote 25} If an appellant doesn’t follow medical advice, then they must have a reasonable explanation for not doing so.^{Footnote 26} If they don’t have a reasonable explanation, then I must also consider what effect, if any, the medical advice might have had on the appellant’s disability.^{Footnote 27}

[46] The Appellant hasn’t followed all medical advice. He didn’t give a reasonable explanation for not following the advice.

[47] Upon being discharged from cardiac rehabilitation in August 2018, the Appellant said he had “no intention [of] continuing with planned physical activity” despite being encouraged to be physically active.^{Footnote 28} He testified that he could not follow through with physical activity because his employer would not allow him the time off to do so. There is no evidence that he would have had to take time off to participate in physical activity. Even if this was necessary, there is no evidence that he increased his physical activity when he stopped working in October 2018.

[48] Furthermore, in September 2020, Dr. Taylor “reinforced, as gently as [he] could, the critical importance of improved physical fitness and counselled him to gradually, but consistently increase his regular fitness activities.”^{Footnote 29} The Appellant maintains that he can’t do anything more than short walks and stretching.^{Footnote 30} As I have already discussed, Dr. Taylor’s report doesn’t support those restrictions.

[49] In May 2019, Dr. Taylor recommended that he go to a chronic pain clinic and try gabapentin for his pain.^{Footnote 31} The Appellant testified that he didn’t go because clinics would not accept him during COVID-19 since he could not be vaccinated due to his heart condition.

[50] With respect, the Appellant’s explanation doesn’t make sense. Dr. Taylor’s recommendation was made almost a year before COVID-19 became an issue. There is no evidence in the Appellant’s file to show that he was referred to or turned away from any pain clinics. Dr. El-Hajj’s notes don’t mention pain clinics or the Appellant’s vaccination status being an issue. On a balance of probabilities, I find it more likely that the Appellant didn’t follow up on Dr. Taylor’s recommendation than that he wasn’t allowed to attend any pain clinics due to his vaccination status.

[51] The Appellant testified that he didn’t try gabapentin because his spouse takes it, and he didn’t want to have the same side effects that she has. This was unreasonable because not everyone reacts the same way to the same medication.

The Appellant can work in the real world

[52] I must now consider whether following this medical advice might have affected the Appellant’s disability. I find that following the advice might have made a difference to the Appellant’s disability. Had he followed the advice, his stamina (fatigue) and physical limitations might have improved. His remaining limitations would not likely have kept him from being regularly able to do some kind of work that he could earn a living from.

[53] To be severe, the Appellant’s functional limitations must prevent him from earning a living at any type of work, not just his usual job.^{Footnote 32} When I am deciding whether the Appellant 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

[54] These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say he can work.^{Footnote 33}

[55] I find that the Appellant can work in the real world. He was still able to work as of December 31, 2019. He was only 38 years old then, with a high school diploma and a National Construction Safety Officer certificate. He was fluent in English. He had worked as a safety advisor or safety coordinator for almost a decade. He testified that, after his last surgery, he was still able to do certain things at work. He did light duties, similar to office work, and taught others how to do the parts of his job that he could not do. This allowed him to avoid more physically demanding tasks.^{Footnote 34}

[56] From his testimony, I understand that he was supposed to work part-time hours, but his employer would not let him. Over time, his employer required him to do more physically demanding tasks. So he went on long-term disability.

[57] The Appellant might not have been able to meet his employer’s demands. But I believe he could have continued to do light duties on a predictable basis, at least part-time, for a different employer. Given his education and experience, that work would likely have been substantially gainful.^{Footnote 35} This is supported by the fact that he had found ways to cope with many of his functional limitations and had worked successfully with them before.

[58] For example, he often wears earplugs. He talks quietly to preserve his voice. He can use a computer, although he types slowly. He copes with his mildly poor memory by taking notes.^{Footnote 36} He is anxious around other people, yet he testified that he has been attending group Bible studies; this shows that his anxiety doesn’t keep him from interacting with others outside his household. I don’t think his fatigue (to the extent that it is caused by poor sleep) would have kept him from working part-time, since he worked full-time for about five months before stopping. I don’t think his lack of focus would have kept him from working when considered alongside these other limitations.

[59] In conclusion, the Appellant’s functional limitations would not have kept him from being regularly able to do some kind of work that he could earn a living from by December 31, 2019. So his disability wasn’t severe by then.

Conclusion

[60] I find that the Appellant isn’t eligible for a CPP disability pension because his disability wasn’t severe by December 31, 2019. Because I found that his disability wasn’t severe, I didn’t have to consider whether it was prolonged.

[61] This means the appeal is dismissed.