Reasons and Decision
Persons in attendance
C. T. Appellant
Introduction
[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on October 28, 2014. The Respondent denied the application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).
[2] In the questionnaire that accompanied the disability application the Appellant stated that in 2012 he stopped working as a X because he was “let go.” He had worked there since 2011. He stated that he had been unable to work since October 25, 2011, because of anxiety and panic disorder, with trembling, twitching, breathlessness, edginess, poor concentration, dizziness, phobias, and panic attacks. He stated that he was sick from his medications, which caused nausea and constipation. At that time he was taking Effexor [venlafaxine] daily; Ativan [lorazepam] when he had a panic attack; and zopiclone [Imovane] seldom (GD2-19-24; 61-68).
[3] This appeal was heard by teleconference for the following reasons:
- The issues under appeal are not complex.
- This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
The law
[4] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must:
- a) be under 65 years of age;
- b) not be in receipt of the CPP retirement pension;
- c) be disabled; and
- d) have made valid contributions to the CPP for not less than the minimum qualifying period (MQP).
[5] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP.
[6] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or she is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.
Issue
[7] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 2012.
[8] In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before the date of the MQP.
Evidence
Appellant’s testimony
[9] The Appellant was born in British Columbia in X 1968. He has lived in the province all of his life. He completed Grade 12 and has taken no courses or continuing education since then.
[10] The Appellant worked mostly in X jobs that he obtained through his union. He had long-standing anxiety which he described as being unable to calm down. This made him work too quickly and he would make mistakes. He had difficulty being around other people. These symptoms caused problems at his jobs but he was able to manage them. He did not remember if he ever missed work in X because of anxiety.
[11] The Appellant stopped working in 2008 although he was uncertain as to why. He thought he might have been laid off for lack of work, but stated that he was also suffering from anxiety and panic attacks at that time. He looked for more work but could not find any, so he collected employment insurance in 2009.
[12] In 2011 the Appellant was unable to find X work, and some of his friends suggested he apply for a X job at a X. He was hired and he began working about 28 hours per week, earning about $14.00 per hour. He worked by himself at night. When he began working his health was “okay” although he still had anxiety. Again, he did not remember if this caused him to miss any work.
[13] The Appellant was laid off from this job in March 2012. He did not know why but thought that it could have been due to lack of work. He had the impression that his employer was unhappy with his job performance, but nothing was ever said to him. Since being laid off he has not looked for other work. He did not think that he would be able to make it through an interview or through a day of work because of his anxiety, so he has not tried.
[14] Since stopping work in 2008 the Appellant has had extreme panic attacks about once a month. They are unpredictable and are triggered by almost anything, such as seeing a road sign. When these occur he feels like he is going to die and he has to go straight home. It takes from one to three days to recover. He gets less severe panic attacks about once a week. When these occur he lies down and watches television.
[15] Around January 2011 the Appellant’s anxiety gradually started to get the best of him. He began to feel anxious all day and this has persisted. It happens particularly when he is in public or tries any activity. He therefore tries to avoid these. He is only calm when he is eating. He does not sleep well and he wakes up feeling depressed and drowsy. He gets some help from melatonin.
[16] The Appellant did not know why he chose October 25, 2011, as the date he was unable to work. He stated that he tried his best to work after that date.
[17] The Appellant has seen his family doctor, Dr. Dang, several times about his mental state. He has avoided going more often because of his anxiety. Dr. Dang told him that he has anxiety and depression, but he has not suggested that the Appellant see a specialist. Dr. Dang provided the psychotherapy referred to in his medical report. Dr. Dang also suggested that the Appellant exercise to help his mood. He does not go to the gym because of his anxiety, and he finds it hard to exercise at home because of his depression and his back pain.
[18] Dr. Dang prescribed Ativan, which the Appellant takes if his panic attacks are very bad. This medication causes him to “crash for two days” and makes him feel sick. He also tried Prozac for about six months, but stopped because of the side effects such as nausea, dehydration and constipation. He experienced similar side-effects with venlafaxine, Zoloft [sertraline], Cipralex [escitalopram] and Abilify [aripiprazole]. He could not recall the names of other medications he has tried. He only takes Tylenol or other non-prescription medications, and Ativan.
[19] In addition to his anxiety and depression the Appellant has had back pain for several years. He used to be able to manage this with exercise, but because of his anxiety he avoids the gym. He takes regular Tylenol or anti-inflammatories for this pain. He thought that it had some effect on his ability to work. It bothers him most when he is sitting in a car.
[20] The Appellant used to live on his own but since 2009 he has lived in the basement of his parents’ home because he does not have any money. He has his own bedroom in the house, and he cleans his own space, does yard work and helps his father with cooking, driving and laundry. His mother is out during the day as she provides part-time child care to the Appellant’s nieces. The Appellant goes shopping if he has to, but tries to go early before there are many people in the store. He is able to drive but after a few hours his back begins to hurt. He is not allowed to use a computer. He declined to explain why. When he is not helping his father he watches television. He has no hobbies and he stopped visiting friends or going places around 2008.
Medical and other reports
[21] The Appellant’s Record of Employment stated that he started his job at the X on April 16, 2011, and that he worked until March 5, 2012, when he was dismissed (GD2-52).
[22] Dr. N. Dang submitted a medical report dated October 28, 2014. He stated that he has known the Appellant for 18 years and that he began treating him in January 2011 for Generalized Anxiety Disorder, panic attacks, and thoracic/lumbar osteoarthritis. He noted that the Appellant had progressive anxiety since his teens that had become more debilitating with age; as well as mechanical back pain that was aggravated by lifting and bending. He stated that the Appellant appeared very edgy, restless, anxious and twitching. He had recurrent symptoms of anxiety and panic attacks including dizziness, light-headedness, throat tightness, insomnia, palpitations, worry, fearfulness, dysthymia and poor concentration and memory. He was afraid to be in crowds or line-ups. His medications were Effexor, Ativan and Imovane [zopiclone]. He had had limited response to medications and psychotherapy. No further consultations or medical investigations were planned; and no improvement was expected (GD2-55-58).
[23] Dr. Dang’s clinical notes for the period September 2011 to October 2014 indicated that the Appellant had appointments in September and October 2011 during which his medication and side effects were discussed. He next saw Dr. Dang in September and October 2012 for back pain aggravated by gym exercises. It was noted that “Zoloft is helping”. In January 2013 the Appellant reported that his mood was stable but he felt the need for a higher dose of Zoloft for anxiety. However, the following week he reported that the dosage was too high and he was having panic attacks and other side effects. The Appellant next saw Dr. Dang in October 2014 because he felt unable to work and that he was eligible for disability. Two weeks later he reported “some improvement with SNRI” (GD2-37-45).
[24] An x-ray of the Appellant’s thoracic spine dated September 19, 2012, showed some narrowing of disc spaces, from minimal to severe, and moderate encroachment on the spinal canal (GD2-59).
Submissions
[25] The Appellant submitted that he qualifies for a disability pension because he has severe spinal pain most of the time, as well as overwhelming anxiety and depression, including phobias and fear of common places.
[26] The Respondent submitted that the Appellant does not qualify for a disability pension because, while he may have difficulty returning to his previous work, the evidence does not support a conclusion that he was precluded from all types of work.
Analysis
[27] The Appellant must prove on a balance of probabilities that he had a severe and prolonged disability on or before December 31, 2012.
Severe
[28] The measure of whether a disability is “severe” is not whether the person suffers from severe impairments, but whether his or her disability prevents him or her from earning a living. The determination of the severity of the disability is not premised upon a person’s inability to perform his or her regular job, but rather on his or her inability to perform any work (Klabouch v Canada (Social Development), 2008 FCA 33).
[29] Applicants for a disability pension must show that they have made efforts to improve their situation. They must submit to reasonable treatment recommendations and follow appropriate medical advice (Lombardo v MHRD, 2001 CP 12731 (PAB).
[30] The Tribunal found the Appellant’s testimony vague and his memory poor. He could not recall details of how his medical condition affected him while he was working. As a result, his oral evidence was not particularly useful in determining why he managed to work regularly up to March 2012 but was unable to by December 2012.
[31] The Appellant’s work history and his present lifestyle suggest that he does face challenges in participating in the workforce. As he lives in a part of the country where the economy is vibrant and work in X is plentiful, the Tribunal accepts that socio-economic conditions are not a factor and that the Appellant’s difficulty in finding and maintaining work is at least in part related to his anxiety disorder. There is not sufficient evidence that his back pain prevents him from performing some type of job.
[32] The difficulty here is that very little is being done to treat the Appellant. This indicates either a lack of severity, or a failure on his part to seek out and participate in reasonable treatment options. He has tried a variety of medications and is unhappy with them because of their side-effects. However, he visits his family doctor rarely. Whatever psychotherapy he has received has been from his family doctor rather than a specialist, and there is no evidence that he has received any treatment of this type at least since September 2011. He has not been referred to a psychiatrist or to group therapy.
[33] There is nothing in Dr. Dang’s clinical notes to indicate that more intensive treatment is required, and that the Appellant is unable to access it because of his condition or for other reasons beyond his control. Dr. Dang has not stated that the Appellant needs to see him more often. While Dr. Dang’s report gave the Appellant’s diagnosis, it did not indicate that the Appellant was disabled from working because of it, nor did Dr. Dang describe impairments that would necessarily preclude the Appellant from pursuing some type of substantially gainful occupation. Indeed, he was able to work for almost a year after his anxiety grew worse, and there is no evidence that he stopped working because of his health.
[34] Where there is evidence of work capacity, a person must show that effort at obtaining and maintaining employment has been unsuccessful by reason of the person’s health condition (Inclima v Canada (A.G.), 2003 FCA 117). The Tribunal is not satisfied that the Appellant has no work capacity. As stated above, there is no evidence that his condition deteriorated after he left his last job for reasons apparently unrelated to his health. It is incumbent upon him to provide evidence that he has tried to work and has been unable to do so.
[35] The Appellant has not shown on a balance of probabilities that he was incapable regularly of pursuing any substantially gainful occupation by December 31, 2012, and that he continues to be so. His condition is therefore not “severe” as defined in the CPP.
Prolonged
[36] Since the Tribunal found that the disability is not severe, it is not necessary to make a finding on the prolonged criterion.
Conclusion
[37] The appeal is dismissed.