Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Appellant, L. L., 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 61 years old. She stopped working due to neck pain that radiated into her left arm in August 1995. She was 34 years old at that time. She had been working as an order clerk, primarily working at a desk using a phone for her work. She developed an adjustment disorder and chronic pain disorder, and in 1998 she had fusion surgery on her neck.

[4] The Appellant started her own business in 2004. She also participated in academic upgrading and re-training in 2006 and 2007. She has developed several additional medical conditions, including diagnoses of fibromyalgia and irritable bowel syndrome in 2000, tinnitus in 2012, and brain aneurysm in 2017.

[5] The Appellant applied for a CPP disability pension on January 10, 2020. 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.

[6] The Appellant says that she has been unable to work since 1995, despite being self-employed for many years after that date. She says the medical evidence shows an inability to work prior to 1997. She argues that her conditions are severe and prolonged.

[7] The Minister says the Appellant was able to attend school for approximately one year. She stopped attending school so she could focus on working at her business, not because of limitations from her medical condition. The Minister suggests that the Appellant’s years of self-employed work, and her attendance in school, show that she wasn’t regularly incapable of pursuing substantially gainful work or continuously disabled.

[8] The Minister says there is also medical evidence confirming a capacity to work after December 31, 1997, so the Appellant’s conditions can’t be considered severe and prolonged.

What the Appellant must prove

[9] For the Appellant to succeed, she must prove she had a disability that was severe and prolonged by December 31, 1997, and continuously since that date. This date is based on her contributions to the CPP.^{Footnote 1}

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

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

[12] 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.

[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 3}

[14] 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.

[15] 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.

Matters I have to consider first

Hearing delays

[16] This hearing was postponed by the Appellant three times and was also re-scheduled by the tribunal twice, prior to the hearing scheduled on December 6, 2022. The Appellant also didn’t come to one of her scheduled hearing dates, and didn’t request an adjournment before that hearing date.

[17] The original hearing date was April 21, 2022. The Appellant attended the hearing and confirmed she had her file. When we began talking about her education and training, the Appellant’s evidence contradicted the evidence in her file. When I referenced the documents in the file, the Appellant said she actually didn’t have the file, and needed an adjournment.

[18] A continuation of the hearing was scheduled for May 27, 2022. The Tribunal re-sent the Appellant a complete copy of her file by courier. However, I was sick with covid-19 that week, and the hearing was scheduled to continue on July 7, 2022. This date was set in consultation with the Appellant.

[19] On July 5, 2022, the Appellant said she was unable to attend the hearing because she was caring for a family member.

[20] A new hearing date was set for September 22, 2022. This date had to be adjusted due to administrative needs of the Tribunal. The Appellant was provided with several alternate dates for her hearing, and she asked for it to be scheduled on September 29, 2022.

[21] The Appellant didn’t attend the hearing on September 29, 2022. The Tribunal called her several times, and she didn’t answer the phone or return the calls. She has never provided a reason why she didn’t attend the hearing.

[22] In the interests of fairness, I set a new date for the hearing to give the Appellant another chance to be heard. The new hearing was scheduled for November 10, 2022.

[23] On November 8, 2022, the Appellant said she was unable to attend the hearing because she was caring for a family member.

[24] I wanted to ensure the Appellant would attend a re-scheduled hearing. She didn’t answer the phone or return the messages of the Tribunal, to set up a new hearing date on consent.

[25] I wrote a letter to the Appellant on November 10, 2022, telling her to contact the Tribunal within seven days, to set a new date for her hearing. I advised that if she didn’t contact the Tribunal a new date would be set without her input. The Appellant didn’t contact the Tribunal.

[26] A new hearing date was set for December 6, 2022. The Appellant didn’t attend the hearing. She didn’t answer the phone when the Tribunal called her, and she didn’t respond to messages the Tribunal left for her. She hasn’t contacted the Tribunal since the hearing date to provide a reason for not attending the hearing.

[27] The Appellant has postponed her hearing three times and hasn’t attended two scheduled hearing dates.

The hearing went ahead without the Appellant

[28] A hearing can go ahead without the Appellant if she got the notice of hearing.^{Footnote 4}

[29] I decided that the Appellant got the notice of hearing because it was sent to her email address on file with the Tribunal.

[30] The Tribunal uses the contact information it has on file when it sends a document to a party. The Appellant used her e-mail address to communicate with the Tribunal and consented to receive communication through email.

[31] When the Tribunal sends a document to a party by email, the document is considered received on the next business day.^{Footnote 5} The next business day, that was not a holiday, was November 14, 2022.

[32] The Tribunal has regularly communicated with the Appellant by e-mail at various stages of the proceeding. The Appellant had asked for her adjournment on November 8, 2022, by e-mail. I find that she received her notice of hearing.

[33] So, the hearing took place when it was scheduled, but without the Appellant.

Reasons for my decision

[34] I find that the Appellant hasn’t proven she had a severe and prolonged disability by December 31, 1997. While she had conditions that were causing her functional limitations on December 31, 1997, she hasn’t shown that her disability was continuous since that time or that she was regularly incapable of engaging in substantially gainful work.

Was the Appellant’s disability severe?

[35] 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 affected her ability to work

[36] The Appellant has:

• Neck pain radiating into the left arm
• Chronic pain disorder
• Adjustment disorder

[37] The Appellant has developed several medical conditions after 1997, including fibromyalgia, irritable bowel syndrome, tinnitus, and a brain aneurysm. Since these conditions arose after December 31, 1997, I’m not able to consider them when I am deciding if the Appellant’s conditions were severe and prolonged by December 31, 1997.

[38] Also, I can’t just focus on the Appellant’s diagnoses.^{Footnote 6} Instead, I must focus on whether she had functional limitations that got in the way of her earning a living.^{Footnote 7} 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 affected her ability to work.^{Footnote 8}

[39] I find that the Appellant had functional limitations that affected her ability to work at her prior job as a clerk on December 31, 1997.

What the Appellant says about her functional limitations

[40] The Appellant says that her medical conditions have resulted in functional limitations that affect her ability to work. The following symptoms and limitations were found in her medical records prior to December 31, 1997:

• She was unable to raise her left arm.
• She was unable to vacuum or perform any heavy household tasks.
• She was unable to engage in prolonged sitting, for more than 30 minutes.
• She had to change positions regularly due to her pain.
• Range of motion in her neck was limited and she had difficulty turning her head, and looking up and down. This impacted her ability to drive.
• She was unable to participate in sports.
• She experienced headaches, and dizziness at times.
• She had trouble with concentration and memory due to pain. She coped by writing things down.
• She experienced feelings of sadness and depression because of her pain.
• She had difficulty sleeping on a nightly basis due to pain and discomfort. This caused fatigue during the day.

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

[41] The Appellant must provide some medical evidence that outlines the nature and extent of her disability, findings related to her diagnosis and prognosis, and any limitation resulting from the disability. This can also include other pertinent information, such as recommendations for treatment.^{Footnote 9}

[42] Dr. Antoniazzi wrote a report for worker’s compensation dated November 20, 1996, diagnosing adjustment disorder with symptoms of depression and anxiety, which he characterized as mild.^{Footnote 10} He also diagnosed a pain disorder with psychological factors.

[43] There is an MRI of the spine dated September 15, 1997. It confirms disc herniation with annular tear at the C4-5 level of the spine. A herniated disc was also located at C5-6 of the spine with flattening of the spinal cord.^{Footnote 11}

[44] Dr. Salo, orthopaedic surgeon, wrote a report dated July 30, 1998.^{Footnote 12} He said he first saw the Appellant in June 1997 and she had chronic neck pain radiating to her left shoulder and arm. He said she was able to stand for 60 minutes, sit for 30 minutes, and walk for 30 minutes at a time.

[45] Dr. Salo diagnosed cervical degenerative disc disease with spinal cord impingement and he recommended spinal decompression and fusion surgery.

[46] Dr. Lewis performed the Appellant’s neck fusion surgery. In a report dated June 30, 1999 he said the neck pain worsened but the arm pain had improved significantly.^{Footnote 13} Testing didn’t reveal abnormalities and neck range of motion was “somewhat” limited.

[47] A functional capacity evaluation report was completed on June 23, 2006.^{Footnote 14} It says the Appellant could safely lift between 5 and 20 pounds, in various circumstances. It says she could perform light physically demanding activities. It recommended work that allowed for regular position changes between sitting, standing, and walking.

[48] The medical evidence supports that the Appellant’s chronic neck and left arm pain, and her adjustment and pain disorder were causing functional limitations that affected her ability to return to work as an office clerk as of December 31, 1997.

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

The Appellant has followed medical advice

[50] To receive a disability pension, an appellant must follow medical advice.^{Footnote 15} If an appellant doesn’t follow medical advice, then they must have a reasonable explanation for not doing so. I must also consider what effect, if any, the medical advice might have had on the appellant’s disability.^{Footnote 16}

[51] The Appellant has followed medical advice.^{Footnote 17}

[52] The Appellant engaged in physiotherapy, acupuncture, chiropractic treatment, and trigger point injections.

[53] The Appellant had neck fusion surgery in 1998.

[54] There is no indication that the Appellant refused any treatments that were recommended to her.

[55] 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 18}

The Appellant can work in the real world

[56] 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

[57] 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 19}

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

[59] The Appellant was 36 years old on December 31, 1997. Her age wasn’t a barrier for working in the real world.

[60] The information in the file indicates the Appellant has worked as an office clerk, nanny, in tobacco production and farming, and in a flower shop. The Appellant had a variety of transferrable skills, including working a sedentary job in an office. Her work experience wasn’t a barrier for working in the real world.

[61] The Appellant communicates in French and English. Her ability to communicate would not prevent her from working in the real world.

[62] The Appellant didn’t compete high school. This didn’t present a barrier for her to work at various jobs in the real world, prior to 1997. That included being an office clerk working at a desk.

The Appellant had work capacity

[63] There is evidence that the Appellant continued to have work capacity, despite her functional limitations.

[64] Dr. Wright, orthopaedic surgeon, completed a report on January 26, 2000.^{Footnote 20} He noted a recent diagnosis of fibromyalgia. He said the Appellant should do a graduated return to work program and suggested she likely only had a part-time work capacity.

[65] In a report dated May 28, 2004^{Footnote 21}, Dr. Reynolds said the Appellant wasn’t capable of full-time work. He thought she could work up to 6 hours a day, two days per week without flaring up symptoms from her conditions.

[66] In 2006, the Appellant engaged in a vocational assessment and re-training program. These reports also suggest the Appellant had capacity to be re-trained and to return to work in the real world.

[67] The medical evidence available suggests that the Appellant has had capacity to work after December 31, 1997.

The Appellant’s work and re-training efforts show she hasn’t had a severe disability continuously since December 31, 1997

[68] 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 22} Finding and keeping a job includes retraining or looking for a job she can do with her functional limitations.^{Footnote 23}

[69] The Appellant attended academic upgrading classes funded through worker’s compensation from September 2006 to August 2007. She attended for up to 20 hours per week and upgraded sufficiently to be accepted to X College.

[70] The Appellant chose to discontinue her re-training and education in September 2007, because she wanted to focus on her own business and was self-employed.^{Footnote 24} Her academic upgrading had been successful, and she didn’t have to stop attending school due to a medical condition.

[71] In a psycho-vocational assessment dated August 18, 2006, it says the Appellant developed her own business ‘approximately 5-6 years ago’.^{Footnote 25} It says the Appellant copyrighted a children’s clothing product, developed her own marketing brochure, and created her own website by herself. The report says the Appellant spent many hours working on the marketing of her product and wanted more training.

[72] There is contradictory information from the Appellant about her training and work efforts since 1997. I was unable to ask her questions to clarify her activities and must rely on the documents filed with the tribunal.

[73] In her Application for CPP, the Appellant reported she had a few years of high school education and hadn’t worked since 1995.^{Footnote 26}

[74] These statements were contradicted by her education records that show she upgraded to the grade 12 level by August 2007.^{Footnote 27} The psycho-vocational report and re-training reports also confirm she was self-employed and running a business during that time.

[75] The Appellant completed a follow up questionnaire for CPP dated July 2, 2020, which also said she hadn’t attended school. The form said she closed her business in 2008 due to her condition.^{Footnote 28}

[76] However, in a medical report dated October 12, 2011, Dr. Reddy confirmed the Appellant was working, running her own business staging homes.^{Footnote 29}

[77] In a medical report dated February 7, 2012, Dr. Adegbite, the treating neurologist, confirmed the Appellant owned a staging business, and was also still making children’s clothing.

[78] I find that the evidence available shows that the Appellant condition hasn’t been continuously severe.

[79] There are also questions relating to the Appellant’s credibility, due to statements she made that conflict with the available evidence. I was unable to resolve these issues because the Appellant didn’t attend her hearing.

[80] Even if the Appellant’s condition was severe as of December 31, 1997, which I am not finding, she hasn’t proven it was continuous up to the present.

[81] While the Appellant is responsible for proving that her condition was severe by a specific date, the CPP also requires that the disability has to continue to be severe up to the hearing date.^{Footnote 30}

[82] The Appellant has the burden of proving a severe disability that is continuous, on a balance of probabilities.

[83] The Appellant’s engagement in educational upgrading, and evidence of her working over the course of several years, suggest her disability likely wasn’t continuous.

[84] There is also a large gap in her medical evidence for the years 2006 to 2011, which doesn’t allow for me to confirm her condition was severe, and that her disability was continuous during that period. These were also years she was reportedly working and attending school, at times simultaneously.

[85] Therefore, I can’t find that the Appellant had a severe disability by December 31, 1997.

Conclusion

[86] 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.

[87] This means the appeal is dismissed.