Canada Pension Plan (CPP) disability

Decision

[1] I am dismissing this appeal. The Appellant is not entitled to a Canada Pension Plan (CPP) disability pension.

Overview

[2] The Appellant is a 67-year-old Pakistani immigrant who has lived in Canada for the past 23 years. In that time, she has had several jobs, most recently as postal clerk in a pharmacy. She left that job in August 2009 after experiencing what she described as severe leg pain.

[3] The Appellant applied for a CPP disability pension in January 2020. She claimed that she could no longer do any kind of work because of severe pain caused by osteoarthritis and varicose veins in both legs.^{Footnote 1} The Minister refused this application after finding that the Appellant did not have a severe and prolonged disability as of December 31, 2009, the last time she had CPP disability coverage.

[4] The Appellant appealed the Minister’s refusal to the Social Security Tribunal’s General Division. It held a hearing by teleconference and dismissed the appeal. It found insufficient evidence that the Appellant was regularly incapable of substantially gainful employment during her coverage period.

[5] The Appellant then applied for permission to appeal to the Appeal Division. Earlier this year, one of my colleagues on the Appeal Division granted the Appellant permission to appeal. Last month, I held a hearing to discuss her disability claim in full.

[6] Now that I have considered submissions from both parties, I have concluded that the Appellant failed to show that she is eligible for a CPP disability pension. The evidence shows that the Appellant, while subject to some functional limitations, did not have a severe disability at the end of 2009 and thereafter.

Preliminary matter

[7] In December 2022, the law governing the appeals to the Social Security Tribunal changed.^{Footnote 2} Under the new law, the Appeal Division, once it has granted permission to proceed, must now hold a de novo, or fresh, hearing about the same issues that were before the General Division.^{Footnote 3} As I explained at the outset of the hearing, that meant I would not be bound by any of the General Division’s findings. I also made it clear that I would be considering all available evidence, including new evidence, about whether the Appellant became disabled during her coverage period.

Issue

[8] For the Appellant to succeed, she had to prove that, more likely than not, she had a severe and prolonged disability during her coverage period. The parties agreed that the Appellant’s coverage ended on December 31, 2009.^{Footnote 4}

[9] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 5} A claimant isn’t entitled to a disability pension if they are regularly able to do some kind of work that allows them to earn a living.

[10] A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.^{Footnote 6} The disability must be expected to keep the claimant out of the workforce for a long time.

[11] In this appeal, I had to decide whether the Appellant developed a severe and prolonged disabilitybefore December 31, 2009.

Analysis

[12] I have applied the law to the available evidence and concluded that the Appellant did not have a severe and prolonged disability as of December 31, 2009. I am satisfied that the Appellant’s medical conditions at the time did not prevent her from regularly pursuing substantially gainful employment.

The Appellant does not have severe disability

[13] Claimants for disability benefits bear the burden of proving that they have a severe and prolonged disability.^{Footnote 7} I have reviewed the record, and I have concluded that the Appellant did not meet that burden according to the test set out in the Canada Pension Plan. While the Appellant might have had impairments during her coverage period, I couldn’t find enough evidence to suggest that they rendered her incapable of work.

[14] In her application for benefits, the Appellant said that she was disabled by severe arthritis and varicose veins in both legs. She said that, because of these conditions, she could not continuously stand or walk for more half an hour, nor could she climb stairs without help. She also complained of hearing loss, visual disturbances, and an inability to concentrate.^{Footnote 8}

[15] At her hearing, the Appellant testified that she developed varicose veins more than 20 years ago — around the time she came to Canada. She said that they got worse in 2009 while she was working in a postal outlet at Shopper’s Drug Mart. At that job, she had to remain on her feet at all times, leaving her legs extremely swollen and painful.

[16] Although the Appellant may feel that she was disabled 14 years ago, I must base my decision on more than just her subjective view of her capacity at that time.^{Footnote 9} In this case, the evidence, looked at as a whole, does not suggest a severe impairment that prevented her from performing suitable work before December 31, 2009.

[17] I base this conclusion on the following factors:

Medical evidence from the Appellant’s coverage period does not indicate a severe disability.

[18] The Appellant has submitted considerable medical evidence in support of her disability claim. The problem is that much of it is dated after the end of her coverage period. The Appellant may well be disabled now, but what matters is whether she was disabled in 2009. Any report dated after that year will have only so much relevance when I assess the Appellant’s work capacity.

[19] In my view, none of the medical reports originating from around the Appellant’s coverage period convincingly point to disability.

[20] In support of her application, the Appellant’s family physician wrote that he had been treating her primary medical condition — varicose veins — since 2004 and her secondary medical condition — right-sided hearing loss — since 2013. He indicated that the Appellant had moderate to severe pain in both legs that made it difficult for her to stand or walk for any length of time.^{Footnote 10}

[21] Of course, this report was prepared nearly 11 years after the end of the Appellant’s coverage period ended. It is true that its author has been treating the Appellant since 2000, but there is no indication in his report that it was intended to address his patient’s condition during the period most relevant for CPP disability purposes.^{Footnote 11} When I look at the few reports that were generated in and around the coverage period, I don’t see convincing evidence that the Appellant was regularly incapable of substantially gainful employment.

[22] The earliest report is an ultrasound of the left knee from July 2009. It showed a small joint effusion, possibly caused by a mild sprain.^{Footnote 12} In October 2009, just before the end of her coverage period, the Appellant was examined by an orthopedic specialist, who reported that he was seeing her about a two-month history of pain and swelling in her left knee. The specialist noted that the pain was settling down — it woke her up at night but did “not limit her walking tolerance.”^{Footnote 13}

[23] In December 2009, an MRI of the left knee showed a complex degenerative tear in the medial meniscus, with “moderate to severe” cartilage damage.^{Footnote 14} It is not clear whether this report showed further deterioration in the Appellant’s knee or whether the meniscal tear had always been present but not detected in previous imaging. Either way, I don’t regard her injured knee by itself to be proof of disability. That is because the Appellant did not take advantage of recommended treatment, and she did investigate alternative jobs that she might have been able to do in her condition.

[24] In October 2010, after the end of her coverage period, the Appellant saw a vascular specialist. He wrote that he had previously seen her for varicose veins and that, at the time, he was prepared to treat them by surgery. However, he said the Appellant never called him back. He added:

Today, she is worried about her left leg. I understand she has a left knee meniscus problem, which is to be fixed with arthroscopic surgery. She was investigated with an MRI, which suggested varicose veins in the left leg. Her concern is that these veins are either causing the pain, or will interfere with her orthopedic procedure. I have explained to her that neither is the case. Then, this patient wanted to shift back to the right leg and discuss treatment for that. I recommended to her that she get her left knee fixed first, since it is causing symptoms, and we will discuss her right leg thereafter. She agreed [emphasis added].^{Footnote 15}

[25] This passage tells me that, nine months after her coverage period ended, the Appellant’s specialist did not believe varicose veins were causing pain in her left leg. It also tells me that her varicose veins did not prevent her from getting arthroscopic surgery on her left knee.

[26] As for the Appellant’s hearing impairment, the available medical evidence suggests that it didn’t become a significant issue until after the end of her coverage period. Her family doctor said that he didn’t start treating her right-sided hearing loss until 2013. The first mention of such an impairment in the file appears that same year, when audiology testing revealed profound hearing loss at low frequencies, with severe to mild loss at middle to high frequencies.^{Footnote 16} Even if the Appellant was experiencing a degree of hearing loss during her coverage period, it is not obvious, based on the testing results, that it would have contributed to a disability.

[27] Taken together, all of the medical evidence before 2010 suggests that the Appellant had medical problems at the time, but not a severe disability. The Appellant had been diagnosed with varicose veins, but it is not clear how much pain they caused her. The Appellant had a meniscal tear in her left knee, but it appears that it was treatable with surgery. All the available evidence indicates that her hearing loss was not a significant problem during her coverage period — if it ever was at all.

The Appellant did not pursue all reasonable treatment options

[28] As we have seen, the medical evidence does not point to a severe disability during the coverage period. But there are other reasons why the Appellant is not entitled to a CPP disability pension.

[29] Disability claimants must show that they tried to get better. The Federal Court of Appeal has made it clear that claimants are not entitled to a CPP disability pension unless they do everything reasonably possible to overcome their impairments.^{Footnote 17} The court has also stated that the burden of proof rests entirely with the claimant.^{Footnote 18} In other words, it is up to the claimant to provide evidence that they have sought treatment.

[30] In a recent case called Brown, the Federal Court of Appeal affirmed the obligation on claimants to “make efforts to treat their disability, where this is possible, and to seek employment that accommodates their limitations.”^{Footnote 19} The Court found that this Tribunal was entitled to find the claimant in that case had no good excuse not to follow his doctors’ recommendations to exercise and lose weight.

[31] Here, there is evidence that the Appellant failed to follow through on a recommendation to undergo a surgical procedure to address her varicose veins. As noted, her vascular surgeon was prepared in 2008 to perform a right sapheno-femoral ligation and avulsion of multiple varicose veins, but he never heard back from her.^{Footnote 20} At both her General Division and Appeal Division hearings, the Appellant said that she never went through with the surgery because she was worried about potential side effects and, in any event, compression stockings sometimes managed her condition.

[32] I don’t find these explanations reasonable. The Appellant’s vascular surgeon is a trained professional, and he presumably would not have recommended surgery unless he was satisfied that the likely benefits were likely to outweigh the risks. The Appellant argued that surgery wasn’t necessary because compression stockings “sometimes” helped, but this also implies that compression stockings “sometimes” didn’t help. The Appellant claims that her varicose veins have rendered her nearly immobile, raising doubts about the effectiveness of compression and leaving me to wonder why she wouldn’t try a procedure that might have been an improvement on the relatively conservative measures she had already tried.

[33] More than 15 years after it was first recommended to her, the Appellant has yet to submit to vascular surgery. I see a similar pattern when it comes to the Appellant’s left knee. She approached her vascular surgeon in 2010, because she was considering arthroscopic surgery to repair her meniscal tear and wanted some assurance that whatever benefit it produced would not be neutralized by her varicose condition. However, there is no indication in the file that the Appellant ever had arthroscopic surgery, even though her vascular surgeon gave her the green light.

[34] In 2014, the Appellant saw an orthopedic surgeon about her knees. She told him that her left knee was most symptomatic and that she also had pain from varicose veins. On examination, the Appellant had good range of movement in the hips and a slight decrease in flexion of the knees, although they were stable. X-rays showed moderate osteoarthritis in both knees. The orthopedic surgeon did not mention arthroscopic surgery, but he said that a total knee replacement might be an option in the future. In the meantime, the Appellant was advised to exercise and resume physiotherapy.

[35] CPP disability claimants are not required to perfectly follow every one of their treatment providers’ recommendations, but they are required to offer a reasonable explanation when asked why they didn’t do so. From what I can see, there was a fair chance that the surgeries recommended by the Appellant’s vascular and orthopedic surgeons would have led to an improvement in her condition. Because the Appellant declined to go through with them, I must find that she failed in her obligation to pursue reasonable treatment options.

The Appellant’s background and personal characteristics didn’t significantly affect her employability

[36] Based on the medical evidence, I find that the Appellant had work capacity. I am reinforced in this belief when I look at her overall employability.

[37] The leading case on the interpretation of “severe” is Villani, which requires the Tribunal, when assessing disability, to consider a disability Appellant as a “whole person” in a real-world context.^{Footnote 21} Employability is not to be assessed in the abstract, but rather in light of “all of the circumstances.”

[38] When deciding whether the Appellant can work, I can’t just look at her medical conditions. I must also consider factors such as her age, level of education, language abilities, and past work and life experience. These factors help me decide whether the Appellant could work in the real world when she had coverage.

[39] The Appellant was 54 years old when she last had CPP disability coverage. She is an immigrant, and English is her second language. Neither aspect of her background gives her an advantage in the Canadian job market. However, she has several personal assets that would have benefitted her in a job search.

[40] First, the Appellant has an education and a demonstrated capacity to learn. She completed the equivalent of high school in Pakistan and went on to earn a Bachelor of Pharmacy degree. Years later, after coming to Canada, she attempted to qualify as a licensed pharmacist in this country. That required passing two Canadian transfer exams through the University of Toronto. She passed the first exam in 2004 but was unsuccessful in the second. She again tried and failed the second exam in 2010, even though by then she claimed to be already debilitated by pain. At around the same time, she also completed some computer courses at an adult learning centre in Oakville.

[41] The Appellant also has a varied worked history. As mentioned, she most recently had a customer facing job as a postal clerk at Shoppers Drug Mart. However, she has also had other jobs in Canada — as a pharmacy assistant at Walmart, a packager at X, and a quality assurance inspector at X. The last two jobs permitted her to be seated much of the time.

[42] The Appellant was able to obtain, and presumably succeed at, these jobs even though her first language is Urdu. The Appellant says that she can speak English, although not fluently. She says that she was able to manage in these jobs because her written English is stronger than her spoken English.

[43] In all, I am satisfied that, despite her background, the Appellant was equipped to succeed in the Canadian labour market during her coverage period. Although she was not young at the time, she had an education and an extended work history in English-speaking environments. Even with her medical conditions, the Appellant would have been capable of at least attempting a number of jobs, such as clerical or semi-skilled office work, data entry, or customer service roles.

The Appellant has not attempted alternative employment

[44] A Federal Court of Appeal decision called Inclima says that disability claimants must do what they can to find alternative employment that is better suited to their impairments:

Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.^{Footnote 22}

[45] This passage suggests that, if a claimant retains at least some work capacity, the General Division must conduct an analysis to determine (i) whether they attempted to find another job, and (ii) if so, whether their impairments prevented them from getting and keeping that job.

[46] On top of that, disability claimants must make meaningful attempts to return to work.^{Footnote 23} They cannot limit their job search to the type of work that they were doing before they became impaired. That is because they must show that they are regularly incapable of pursuing any substantially gainful occupation.^{Footnote 24} Claimants who fail to pursue alternative forms of employment may be ineligible for benefits.

[47] In this case, the Appellant had at least some work capacity — enough to trigger the obligation to pursue employment that might have been better suited to her limitations. However, the Appellant never worked again after leaving Shoppers Drug Mart in August 2009. At the hearing, she testified that her final job required her to stand at all times. I asked her whether she had tried to find employment that would have been easier on her legs. She said that she had tried but that sitting jobs were unavailable. She also said that, even if such a job had been available, her varicose veins would not have permitted her to sit comfortably for extended periods.

[48] I found this explanation unconvincing. The Appellant had previously had jobs that were mostly seated. And, as we have seen, the medical evidence from the relevant period indicated that much of the Appellant’s leg pain came from conditions that, while treatable, went untreated. In any event, there was little on the record to suggest that either the Appellant’s injured left knee or her varicose veins prevented her from prolonged sitting during her coverage period.

[49] In the end, I was unable to assess the severity of the Appellant’s disability as of December 31, 2009. That’s because she didn’t make a serious effort to look for employment that might have been better suited to her functional limitations. If she had attempted a job that mostly allowed her to remain seated, she might have been able to keep working and earn a substantially gainful income while doing so.

I don’t have to consider whether the Appellant has a prolonged disability

[50] A disability must be severe and prolonged.^{Footnote 25} Since the Appellant has not proved that her disability is severe, there is no need for me to assess whether it might also be prolonged.

Conclusion

[51] The Appellant currently has significant health problems, but the available evidence suggests that they did not prevent her from working until several years after the end of her coverage period. What’s more, the Appellant didn’t take reasonable steps to seek treatment for her legs, nor did she make a real effort to seek alternative employment. For these reasons, I am not convinced that the Appellant’s condition amounted to a severe disability December 31, 2009. I saw nothing from that time to suggest that the Appellant was unable regularly to pursue substantially gainful employment.

[52] The appeal is dismissed.