Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Appellant, R. C., 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 43 years old. His last regular job was working as a labourer and pipe layer for an Ottawa construction company. While he reports having fibromyalgia for many years, he says he has been unable to work since July 2014. His main symptoms are constant pain, being unable to move, and being unable to sustain positions. As a result, he later began to suffer from depression and anxiety.

[4] The Appellant applied for a CPP disability pension on November 10, 2020. The Minister of Employment and Social Development (“Minister”) refused his application. The Appellant appealed the Minister’s decision to the Tribunal’s General Division.

[5] The Appellant says his medical conditions affect every aspect of his life. He says he initially tried to treat his pain with drugs and alcohol. He then became unresponsive to doctors and family members. He eventually began to see a family doctor again, but his condition predates his current doctor’s involvement. Medication is either not effective or not advisable due to his addiction history. His inability to work then led to his mental health conditions. He says his condition and lack of a family doctor also prevented him from applying earlier for a CPP disability pension.

[6] The Minister says medical evidence is required to support a finding that a disability is severe. However, there is no medical information before October 2019. The Minister also says the Appellant declined mental health counselling and there is no evidence of treatment by a mental health specialist. The Minister adds that his limited medications are not consistent with a severe disability. Finally, the Minister says the Appellant has not attempted alternate work more suitable to his condition.

What the Appellant must prove

[7] For the Appellant to succeed, he must prove he had a disability that was severe and prolonged by December 31, 2015. This date is based on his CPP contributions.^{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 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, education, 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 he can regularly do some 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 3}

[12] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep him 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 it is more likely than not that he is disabled.

Matters I have to consider first

The Appellant’s spouse was not a true representative

[14] The Appellant’s spouse, M. K., is listed as his representative. However, she is not a legal professional. She was not paid to appear. She was merely helping her spouse. While she helped manage his appeal before the hearing, her role at the hearing was as a witness and to provide support. She did not ask the Appellant any questions at the hearing. As a result, I let her give evidence at the hearing.

Reasons for my decision

[15] I find that the Appellant hasn’t proven he had a severe and prolonged disability by December 31, 2015.

Was the Appellant’s disability severe?

[16] The Appellant’s disability wasn’t severe by December 31, 2015. I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations didn’t affect his ability to work

[17] The Appellant has been diagnosed with fibromyalgia. As a result, he later developed a major depressive disorder and a generalized anxiety disorder.

[18] However, I can’t focus on the Appellant’s diagnoses.^{Footnote 4} Instead, I must focus on whether he had functional limitations that interfered with earning a living by the end of 2015.^{Footnote 5} When I do this, I must to look at all of his medical conditions (not just the main one) and think about how they affected his ability to work.^{Footnote 6}

[19] I find that the Appellant hasn’t shown that functional limitations affected his ability to work by the end of 2015.

What the Appellant says about his functional limitations

[20] The Appellant says his medical conditions have resulted in functional limitations that affect his ability to work.

[21] On his worst days, the Appellant says he^{Footnote 7}:

• Can barely move.
• Needs help with putting on his socks.
• Cannot do simple tasks such as sweeping, laundry, or childcare.
• Drops whatever he is holding.
• Withdraws from his family due to his bad mood.

[22] On regular days, the Appellant says he^{Footnote 8}:

• Cannot bend to pick up toys.
• Can’t sit or stand for longer than 15 minutes before he must move.
• Has trouble maintaining focus on tasks and conversations.
• Gets angry for no apparent reason.
• Can’t sleep more than an hour or two without pain.
• Needs to sleep at various times during the day, as he is exhausted.

[23] More generally, the Appellant says he experiences side effects from his mental health medications. He has anxiety in public spaces where he must interact with others. He has trouble breathing, is unable to speak, and wants to flee to avoid passing out. Some days he cannot even leave the house. Essential outings are short and to the point. He often misses appointments due to his pain and mood. He also has difficulty admitting and discussing his limitations.^{Footnote 9}

[24] At the hearing, M. K. said the Appellant wouldn’t go to appointments because he didn’t want to be around people. He would be unable to breathe and would be worried about passing out. She said he wanted to explore an alternative career in tattooing but couldn’t hold on to the equipment required. He can’t drive long distances. He can’t shovel the driveway. He can’t sit in a movie theatre or a restaurant.

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

[25] The Appellant genuinely believes that his functional limitations affect his ability to work. His limitations may well limit his ability to work now.

[26] However, the Appellant must provide some medical evidence to support that his functional limitations affected his ability to work by December 31, 2015.^{Footnote 10}

[27] The medical evidence doesn’t support what the Appellant says.

[28] The problem is that there is no medical evidence until October 9, 2019. On that date, Dr. Johnson (family doctor) treated the Appellant for the first time. Dr. Johnson noted the Appellant had chronic pain. Dr. Johnson also noted his low mood, anxiety, and panic attacks. Dr. Johnson wrote that these problems had existed for “years”. However, Dr. Johnson also recorded that the Appellant had no previous treatment for any of this.^{Footnote 11}

[29] This appointment was nearly four years after the end of 2015.

[30] In March 2020, Dr. Johnson prepared a report for CPP purposes. Dr. Johnson said the Appellant’s mental health condition started in October 2019.^{Footnote 12} This contradicts the October 2019 note saying that his mental health conditions go back “years”.^{Footnote 13}

[31] In that same March 2020 report, Dr. Johnson said that the onset date for the Appellant’s fibromyalgia was “> 2009” and “predates clinic involvements”.^{Footnote 14} However, as noted, Dr. Johnson only entered the picture in October 2019. In February 2023, the Minister asked Dr. Johnson’s office about medical information from 2013 to October 2019. Dr. Johnson’s office replied that there was no medical information from that period. Nor did they have any information about the Appellant’s medical history or the names of previous doctors. No other treating doctor was identified.^{Footnote 15}

[32] I cannot find that the medical evidence supports the Appellant’s reported functional limitations by the end of 2015. He self-reported to Dr. Johnson in 2019 that his problems went back “years”. And he self-reported to Dr. Johnson in 2019 that his chronic pain had existed for more than 10 years.^{Footnote 16} This is not persuasive medical evidence that supports the Appellant’s claimed limitations.

[33] The Appellant’s work history affirms the importance of having medical evidence from around 2015. He worked in construction until 2013. His earnings up to that time were substantial^{Footnote 17}:

[34] The Appellant’s medical progression also affirms the importance of having medical evidence from around 2015. At the hearing, he said his ability to work is “100 times worse” now than it was in December 2015.

[35] I have considered the Appellant’s evidence about his inability to get the records from his previous family doctor. He said his previous doctor was Dr. Teisha Legault of Winchester, Ontario. He said he could probably get the records from Dr. Legault but couldn’t do the 3.5- or 4-hour drive from Eganville to Winchester. I make no finding on whether this is a reasonable estimate for that drive.

[36] However, the Appellant also said there was no response when Dr. Johnson wrote to Dr. Legault for his medical records. But, as noted, Dr. Johnson’s office said in February 2023 that they had no information about the Appellant’s prior doctors.^{Footnote 18} In October 2019, Dr. Johnson also said the Appellant would take care of getting his previous family doctor records.^{Footnote 19} Accordingly, I find it unlikely that Dr. Johnson’s office ever wrote to Dr. Legault.

[37] While getting medical records may not always be easy, the onus in this appeal is on the Appellant. He needs to prove his case on a balance of probabilities.

[38] The medical evidence doesn’t show that the Appellant had functional limitations that affected his ability to work by December 31, 2015. As a result, he hasn’t proven he had a severe disability.

[39] When deciding whether a disability is severe, I usually have to consider an appellant’s personal characteristics. This lets me realistically assess his ability to work.^{Footnote 20}

[40] I don’t have to do that here. The Appellant didn’t show that his functional limitations affected his ability to work by December 31, 2015. This means he hasn’t proven his disability was severe by then.^{Footnote 21} Similarly, I don’t need to consider the impact of his refusal to have mental health counselling or his recent lack of medical care.

[41] Lastly, I will address the Appellant’s delayed application for the CPP disability pension.

The Appellant did not apply right away for a disability pension

[42] The Appellant said his addictions and his lack of a family doctor delayed his application for the CPP disability pension.^{Footnote 22} He also said his family doctor wanted to establish a rapport with him before supporting his application. As noted, the Appellant did not apply until November 2020.

[43] In this case, the delay is not relevant. Even if the Appellant had applied earlier, he still would have needed to establish a severe and prolonged disability by the end of 2015. The reasons for my decision above would not change.

[44] Applying earlier would only have been relevant if the Appellant did establish a severe and prolonged disability by the end of 2015. In that case, the application date would affect the start date of the disability pension.

Conclusion

[45] I find that the Appellant isn’t eligible for a CPP disability pension because his disability wasn’t severe by December 31, 2015. Because I found that his disability wasn’t severe, I didn’t have to consider whether it was prolonged.

[46] This means the appeal is dismissed.