Facts

The appellant [A.] , born 1955, applied for benefits on 11 November 2013 with the IV-Stelle Bern, citing a minor ischaemic stroke (Schlaganfall) he had suffered on 18 May 2012.

By decision of 10 November 2015, the IV-Stelle denied entitlement to disability insurance benefits for lack of disability within the meaning of the law. The Administrative Court of the Canton of Bern dismissed the appeal by judgment of 10 January 2017. By judgment 8C_135/2017 of 4 September 2017, the Federal Supreme Court set aside that judgment and remitted the matter to the Administrative Court for a new decision.

The Administrative Court obtained a multidisciplinary expert report dated 28 November 2018 from the Ärztliches Begutachtungsinstitut GmbH, Basel (ABI), together with a supplementary opinion dated 25 February 2019. Relying on these, it again dismissed the appeal by judgment of 17 June 2019.

The appellant lodges an appeal in public law matters and requests that the IV-Stelle be ordered to pay him a half pension from 1 May 2014, plus default interest; in the alternative, that the matter be remitted to the lower court for a new decision. The IV-Stelle requests dismissal of the appeal. The Administrative Court and the Federal Social Insurance Office waive a response.

Subject matter of the dispute: Whether the lower court violated federal law by denying a pension entitlement, and whether it was right to rely on the court-ordered expert report of 28 November 2018.

Expert findings of the ABI:

  • Diagnoses affecting work capacity: persistent mild to moderate depressive episode; increased daytime sleepiness, multifactorially caused, in the context of newly diagnosed, untreated, severe obstructive sleep apnoea syndrome; differential diagnoses of post-stroke fatigue and psychogenic disorder; normal result in the multiple sleep latency test.
  • The experts found a predominantly functional overlay, with an objective core in the sleep apnoea syndrome.
  • Work capacity with untreated sleep apnoea syndrome: 50% in the previous occupation as head of quality control; 60% as caretaker or machine fitter; with treated syndrome 80% in both occupations.
  • Adapted activities: light to medium-heavy activities with seven to eight hours of presence per day with slightly reduced output; work capacity on the open labour market 80%.

Considerations

The Federal Supreme Court examines the application of the law ex officio (Art. 106 para. 1 FSCA), but only the complaints raised, unless other defects are obvious (Art. 42 paras. 1 and 2 FSCA). It is bound by the lower court's findings of fact, unless they are obviously incorrect or based on a violation of law (Art. 105 paras. 1 and 2 FSCA). The fact that the cantonal court itself obtained the expert report does not alter its power of review; it thereby complied with its duty to investigate under Art. 61 lit. c GSSLA, and it had full cognition.

According to settled case law, the probative value of court-ordered expert reports must be recognised, and one may not depart from them without compelling reasons. The appellant first complains of a contradiction between the work capacity of five to six hours attested for all activities with untreated sleep apnoea syndrome and the presence of seven to eight hours for adapted activities. The experts denied this contradiction in their opinion of 25 February 2019; moreover, the assessment of the adapted activity had been made on the assumption of a treatable sleep apnoea syndrome. Since the experts regarded the symptoms as not authentic in view of the persisting complaints despite adequate treatment, a work capacity of five to six hours could only be affirmed if treatment had actually been successful. The treating pulmonologist, however, reported only a possibly slight improvement in daytime sleepiness, which is why a functional overlay and a 20% work incapacity from October and December 2013 respectively must be assumed.

The appellant further complains of a contradiction between the overall assessment (seven to eight hours or 80%) and the partial reports (five to six hours or 60%). The neurological assessment is not contradictory, since the neurological expert took into account the influence of the sleep apnoea and the treatment options and expected normal working and performance capacity with proper treatment. The assessment of the neuropsychological expert, who as a psychologist is not qualified as a medical specialist and therefore cannot alone be decisive, showed a work capacity that was primarily limited in time and characterised by reduced resilience and daytime sleepiness. His restrictions were less severe than those in the report of Dr. med. [D.] of March 2014, which the neurological expert also described as rudimentary and deficient. The neuropsychological expert further did not exclude that psychological causes or long-term drug therapies contributed to the impairments. That he…