Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Appellant, J. G., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of October 2021. This decision explains why I am allowing the appeal.

Overview

[3] The Appellant is a 62-year-old man who has suffered from knock knees since his birth. As he aged it became problematic for him. In 2017, he developed advanced arthritis in his right leg as well as varicose veins.

[4] The Appellant applied for a CPP disability pension on February 1, 2022. 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 that he worked for Canadian Tire for 15 years. He only stopped working when he was diagnosed with severe osteoarthritis by his doctor and his employer encouraged him to apply for short term and then long-term disability benefits.

[6] The Minister says that the Appellant does not meet the criteria of severe and prolonged according to the CPP. Further, while he has functional limitations, his medical condition would not stop him from pursuing alternate suitable work.^{Footnote 1}

What the Appellant must prove

[7] For the Appellant to succeed, he must prove he had a disability that was severe and prolonged by July 2021. 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 have to look at all of the Appellant’s medical conditions together to see what effect they have on his ability to work. I also have to look at his background (including his age, level of 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 the Appellant is able to regularly 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 has to prove he has a severe and prolonged disability. He has to prove this on a balance of probabilities. This means that he has to show that it is more likely than not he is disabled.

Reasons for my decision

[14] I find that the Appellant had a severe and prolonged disability as of June 2021. I reached this decision by considering the following issues:

• Was the Appellant’s disability severe?
• Was the Appellant’s disability prolonged?

Was the Appellant’s disability severe?

[15] The Appellant’s disability was severe. I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations affect his ability to work

[16] The Appellant has:

• bilateral knock-knee deformity arthritis; and
• varicose veins.

[17] However, I can’t focus on the Appellant’s diagnoses.^{Footnote 5} Instead, I must focus on whether he had functional limitations that got in the way of him 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 affected his ability to work.^{Footnote 7}

[18] I find that the Appellant has functional limitations that affect ability to work.

What the Appellant says about his functional limitations

[19] The Appellant says that his medical conditions have resulted in functional limitations that affect his ability to work. He says he has the following impairments:

• Remain on his feet 20 minutes – After 20 minutes the Appellant’s legs become stiff, and he cannot walk further.
• Walk a block - He then has to rest. After that he can walk again.
• Up or down 12-15 steps – After that he would need to sit down and rest before continuing.
• Get into kneeling or squatting position – The Appellant finds it very difficult to bend or squat. As a result, he relies on his wife to clean the house.
• Bending to pick up a coin from the floor – The Appellant would need to sit on a chair to pick something up from the floor.
• Pick up two bags of groceries and walk a block. – He can walk perhaps five steps. After that he feels too much pain to lift anything.

Moreover, the Appellant has severe arthritic pain. He is unable to do most activities of daily living. He is restricted in going out and attending to his personal care.

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

[20] The Appellant must provide some medical evidence that supports that his functional limitations affected his ability to work by July 2021.^{Footnote 8}

[21] The medical evidence supports what the Appellant says.

[22] The Appellant’s physician, Dr. Malik, wrote that he suffered from severe bilateral knock-knee deformity, arthritis, and varicose veins.^{Footnote 9} As a result, the Appellant was noted as having severe pain in both legs and knees, especially with walking and standing. He was noted as having difficulty with bending, crouching, and squatting.^{Footnote 10}

[23] Dr. Malik wrote hat the Appellant was unable to lift more than 20 pounds. He was also noted as being unable to bend, crouch, squat, walk and stand for more than short periods and only when tolerated.

[24] Dr. Malik wrote that the Appellant’s current work absence commenced on June 10, 2021.^{Footnote 11}

[25] A bilateral knee X-ray completed on May 16, 2017, demonstrated that the Appellant had moderate to severe osteoarthritic changes in his right leg and mild medial and lateral osteoarthritic changes in his left leg.^{Footnote 12}

[26] On February 2, 2022, Dr. Malik completed a medical report in support of the Appellant’s disability benefit application. He wrote that the Appellant had severe knee osteoarthritis and genu valgus deformity. He noted the Appellant had this condition from childhood but that these conditions eventually became disabling. Impairments included pain, walking, standing, bending, crouching, severe valgus deformity and arthritis. This resulted in great difficulty in standing, walking for extended periods, nearly unable to bend or crouch or squat.^{Footnote 13}

[27] The medical evidence supports that the Appellant’s osteoarthritis prevented him from doing basic activities of daily living. The Appellant is challenged with standing, walking, bending, and crouching. The arthritic changes have caused him extensive pain and left him unable to engage in routine chores and tasks.

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

The Appellant hasn’t followed medical advice

[29] To receive a disability pension, an appellant must follow medical advice.^{Footnote 14} 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 15}

[30] The Appellant hasn’t followed medical advice. He gave a reasonable explanation for not following the advice.

[31] The Minister raised the point in its submissions that the Appellant has not attempted all medical treatments available to him. This is correct. The Appellant’s physician recommended that he undergo surgery to adhere new kneecaps. This may resolve his symptoms. I asked the Appellant why he has not had surgery. He told me that this was a major form of surgery. His physician had told him that there was no guarantee that the surgery would result in success and lessen his symptoms. Moreover, his physician advised him that there were significant risks involved. These risks included the possibility of a heart attack. Given the Appellant’s age, this could result in death. As the surgical intervention was not assured of resolving his symptoms and the serious potential side-effects, I am satisfied that the Appellant acted reasonably in refusing surgery.

[32] The Appellant gave a reasonable explanation why he didn’t follow medical advice. So, it doesn’t matter that he didn’t follow it.

[33] 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 him from earning a living at any type of work, not just his usual job.^{Footnote 16}

The Appellant can’t work in the real world

[34] 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

[35] These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that he can work.^{Footnote 17}

[36] I find that the Appellant can’t work in the real world.

[37] The Appellant is 62 years old. At the time he stopped working he was 59 years old. While he holds a university degree in journalism, he obtained this degree in Sri Lanka. When he moved to Canada in 2001, he was unable to use his education to find a job. As a result, he has worked in manual or warehouse jobs. These forms of employment have generally been labour-intensive.

[38] On May 11, 2022, the Appellant participated in a transferable skills analysis with Lifemark Canada.^{Footnote 18}

[39] Jill Dodge, Vocational Assessor, conducted the assessment. She completed a transferable skills analysis (TSA) to identify suitable alternate occupational options in consideration of the Appellant’s restrictions and limitations, education, training, experience, and skills. While she reviewed a number of potential forms of employment, she ultimately concluded that there were no suitable jobs for the Appellant given his functional impairments.^{Footnote 19}

[40] Moreover, I asked the Appellant about whether he had been able to find any employment. He told me that while he had applied for jobs, he had been unable to obtain any form of employment given how difficult his functional impairments were to deal with.

[41] The Appellant has extensive functional impairments. He is unable engage in any form of physical activity without pain. He is limited in how far he walks, how he cannot stay on his feet for more than 20 minutes and how he cannot do basic activities such as bending, kneeling, and squatting. I am satisfied that the Appellant has extensive impairments that interfere with his ability to engage in most daily activities.

[42] Moreover, the Appellant was 60 years old in July 2021. He had only worked manual labour jobs in Canada and as such had few transferable skills given his functional impairments.

[43] When I consider all these factors, I am satisfied that the Appellant had a severe disability within the meaning of the CPP.

[44] I find that the Appellant’s disability was severe as of June 2021 when Dr. Malik noted that he was off work due to his physical disability.

Was the Appellant’s disability prolonged?

[45] The Appellant’s disability was prolonged.

[46] The Appellant’s conditions began at birth. The Appellant was born with bilateral knock-knee deformity. This condition has continued since then, and it will more than likely continue indefinitely.^{Footnote 20}

[47] Dr. Malik wrote that the Appellant’s conditions were lifelong.^{Footnote 21}

[48] I find that the Appellant’s disability was prolonged as of June 2021, when Dr. Malik advised that he was off work due to his condition.

When payments start

[49] The Appellant’s disability became severe and prolonged in June 2021.

[50] There is a four‑month waiting period before payments start.^{Footnote 22} This means that payments start as of October 2021.

Conclusion

[51] I find that the Appellant is eligible for a CPP disability pension because his disability was severe and prolonged.

[52] This means the appeal is allowed.