Canada Pension Plan (CPP) disability

Decision

[1] The Claimant, D. G., is eligible for a Canada Pension Plan (CPP) disability pension. Payments are to start September 2016. This decision explains why I am allowing the appeal.

Overview

[2] The Claimant was born in 1967. He got as far as Grade 11 in school. He worked as a customer service manager at a bank, but he left this job in August 2015 after an illness and hospitalization. He returned to his bank job on modified duties, but the Claimant could not perform his job duties. He has not worked at the bank since May 2016. The Claimant tried other jobs after leaving the bank. He processed on-line lottery ticket sales for a charity and he performed yard work for seniors. The Claimant alleges that he has not been able to engage in substantially gainful employment since May 2016.

[3] The Claimant applied for a CPP disability pension on May 3, 2017. The Minister of Employment and Social Development Canada (the Minister) refused his application because the medical evidence did not show that the Claimant had a disability under the CPP. The Claimant appealed to the General Division of the Social Security Tribunal.

[4] The General Division dismissed the Claimant’s appeal on September 6, 2019. The General Division decided that the Claimant did not have a disability under the CPP because he had work capacity.

[5] The Claimant appealed the General Division’s decision to the Appeal Division of the Social Security Tribunal. The Appeal Division allowed the Claimant’s appeal. The Appeal Division ruled that the General Division made an error of law because the General Division did not turn its mind to the issue of whether the Claimant’s work after leaving the bank was substantially gainful. The Appeal Division send the appeal back to the General Division.

[6] I heard this appeal on September 2, 2020. I am allowing the appeal. I accept that the Claimant’s work after leaving the bank was not substantially gainful. I find that the Claimant has been incapable regularly of pursuing any substantially gainful occupation since he last worked at the bank in May 2016.

Preliminary issues

[7] The Minister stated that it would send a representative to the hearing on September 2, 2020. However, the Minister did not end up sending a representative to the hearing.

What the Claimant must prove

[8] For the Claimant to succeed, he must prove that he has a disability that was severe and prolonged by December 31, 2019. This date is based on his CPP contributions.^{Footnote 1}

The reasons for my decision

[9] I find that the Claimant has a severe and prolonged disability as of May 2016. I reached this decision by considering the following issues.

Was the Claimant’s disability severe?

The Claimant has functional limitations that affect his capacity to work

[10] My decision about whether the Claimant’s disability is severe is not based on his diagnosis. It is based on whether he has functional limitations that prevent him from working.^{Footnote 2} I have to look at his overall medical condition and think about how the Claimant’s health issues might affect his ability to work.^{Footnote 3}

[11] The Claimant has to provide objective medical evidence of his disability as of December 31, 2019. If the Claimant fails to prove that he suffered from a severe disability prior to this date, medical evidence dated after is irrelevant.^{Footnote 4}

[12] The Claimant argues that his medical conditions result in in problems with sitting, walking, lifting, reaching, bending, memory, concentration, sleeping and performing housekeeping tasks.^{Footnote 5} The Claimant suffers from a generalized anxiety disorder (GAD). He was hospitalized in August 2015 with liver abscesses and pneumonia. He recovered, but he developed severe anxiety and panic attacks.^{Footnote 6}

[13] The Claimant testified that he performed physical work at a mine and sawmill. But he stopped working at the sawmill after seeing a friend die at work. He started working as a bank teller. He worked in reception. He worked as a financial services representative. He eventually became a customer services representative at the bank

[14] The Claimant went off work after a three week hospitalization in August 2015 brought about by pneumonia and liver abscesses. He had lower back pain in the hospital. The Claimant testified that his private disability insurance company, X, made him go back to work.

[15] The Claimant’s return to work effort at the bank ended in failure. He could not sit down. He was in pain. His manager asked him to perform duties that he was not comfortable with performing. He began having anxiety and panic attacks. X provided him with counselling to help him deal with anxiety. He began taking Cipralex. He saw a chiropractor for neck and back pain. But he still experienced constant pain and poor sleep. The Claimant stopped working at the bank in May 2016. He eventually settled his lawsuit with X. The Claimant worked for a charity where he processed on-line lottery ticket sales after leaving the bank. He performed yard work for seniors on a casual basis. He also occasionally paints for friends.

[16] The Claimant testified that anxiety is his primary disabling condition. He also suffers from back pain, elbow and foot pain, plantar fasciitis, right hand tendonitis. He experiences locking in his shoulder and hip.

[17] The Claimant tried treatment to deal with his physical and mental health problems. His back pain improved with chiropractic treatment, but it is still there. He tried spiritual counselling to deal with his anxiety.

[18] The Claimant testified that he worked at non-profit organization processing on-line lottery ticket sales in 2018 to 2019 and 2019 to 2020. He worked at an office. His employer knew about his health problems. They gave him a chair with a lumbar support to help with his back pain. He had little interaction with the public. He worked on a computer. He worked on the weekends on a seasonal basis. He made about $6,000 at this job in 2018 to 2019 and $9,000 in 2019 and 2020.

[19] The Claimant occasionally performed yard work for seniors after he stopped working at the bank. He sometimes made $100 in a work. But this work was very casual. He would work about 3 hours per week in the summer. He would feel exhausted after working on no more than three yards.

[20] The Claimant does not think that he could work in a fast-paced environment. He does not believe that he can handle a driving job. He thinks he could work from home on a computer, but he believes that deadlines would trigger anxiety,

[21] The Claimant wants to work as a spiritual counsellor. He is taking some courses. He does not know how long it will take to become a spiritual counsellor, but he acknowledged that he has to work on his own anxiety before he can do a job like that.

[22] The medical evidence supports the Claimant’s argument about his inability to engage in substantially gainful employment.

[23] The medical evidence shows that the Claimant was hospitalized from August 14 to September 1, 2015 because of a liver abscess caused by pneumonia.^{Footnote 7}

[24] The Claimant developed anxiety after going to back to work in October 2015. He saw a social worker because of anxiety.^{Footnote 8}

[25] A March 7, 2016 clinical note from the Claimant’s family doctor showed that the Claimant had to leave work. He suffered from lower back pain. He had difficulty doing his job. He had anxiety and chest pain. He was forgetful. He would lost his train of through and he was not sleeping.^{Footnote 9}

[26] A March 22, 2016 clinical note from the Claimant’s family doctor showed that the Claimant experienced shortness of breath. He was put off work for conflict resolution anxiety. He also complained of lower back pain when he got up from his chair.^{Footnote 10}

[27] An April 22, 2016 clinical note from the Claimant’s family doctor showed that the Claimant was seeing a counsellor through work. He was performing breathing exercises. He also saw a spiritual coach.^{Footnote 11}

[28] A May 9, 2016 clinical note from the Claimant’s family doctor showed that the Claimant returned to work at the bank. But his boss made a comment that triggered anxiety. The Claimant began to hyperventilate. The Claimant did not go back to work the next day. He did not think that he would be able to return to his job at the bank. He began taking Cipralex.^{Footnote 12}

[29] The Claimant saw a chiropractor in 2017 because his shoulder and hips locked. These symptoms increased when he performed yardwork and painting. The Claimant also had ongoing anxiety.^{Footnote 13}

[30] The Claimant tried to go off Cipralex in 2019, but that did not work well for him.^{Footnote 14}

[31] The Minister argued that the medical evidence did not support a finding of a severe disability under the CPP.

[32] I agree with the Minister that medical evidence suggested the Claimant has work capacity. The medical evidence showed that the Claimant worked for friends under the table.^{Footnote 15} His family doctor mentioned retraining for a new career.^{Footnote 16} The Claimant painted and did yard work.^{Footnote 17} He planned on working as a spiritual counsellor and he did course work.^{Footnote 18} He thought about starting his own company.^{Footnote 19} His family doctor completed a medical report for the Minister. The family doctor stated that the Claimant had an excellent prognosis. The family doctor was of the opinion that the Claimant’s symptoms appeared to be related to dealing with one supervisor at the bank and the Claimant should be able to work elsewhere.^{Footnote 20} The Claimant’s family doctor did not believe that the Claimant qualified for a CPP disability pension.^{Footnote 21}

[33] However, I still find that the Claimant had a severe disability under the CPP by December 31, 2019, with anxiety being his primary disabling condition. There was enough medical evidence to demonstrate the fact that the Claimant suffered from mental health problems after his hospitalization in August 2015 that eventually led to his departure from the bank in May 2016. I also find that the work that he performed after 2016 was not substantially gainful. In addition, the family doctor’s comments do not bind me. It is up to me to decide whether the Claimant has a disability under the CPP based on all of the evidence before, which includes the Claimant’s testimony.^{Footnote 22}

[34] I found the Claimant to be a credible witness. I am satisfied that he has experienced and continues to experience psychological distress. His Record of Earnings showed that he earned income in each year from 1985 to 2016.^{Footnote 23} The Claimant earned a good income at the bank. He testified that he is experiencing financial problems. I believe that the Claimant would work at substantially gainful job if he could do so, but I am satisfied that he cannot because of his mental health condition. I also find that the Claimant’s motivation to work was demonstrated by his efforts to engage in work after leaving the bank in May 2016. However, I am satisfied that none of the post-bank work was substantially gainful. I am satisfied that the Claimant has been incapable regularly of pursuing any substantially gainful occupation since he left the bank in May 2016.

[35] The Minister also pointed out that one of the family doctor’s clinical notes on April 19, 2018 stated that the Claimant was worried about surveillance because of his lawsuit with X. The Claimant was working under the table painting and wanted to work as a spiritual counsellor.^{Footnote 24} However, I do not believe that this was evidence of work capacity on the part of the Claimant to engage in substantially gainful employment. The family doctor’s clinical note described the Claimant’s work as being light. I do not see evidence that showed the Claimant engaging in substantially gainful employment after May 2016.

The Claimant does not have work capacity

[36] When I am deciding if the Claimant is able to work, I must consider more than just the Claimant’s medical conditions and their effect on functionality. I must also consider his age, level of education, language proficiency, and past work and life experience. These factors help me decide if the Claimant can work in the real world.^{Footnote 25}

[37] I find the Claimant has no capacity to work in the real world. The Claimant was 52 years old by December 31, 2019. He only got as far as the eleventh grade in school, but he worked at a bank for about 16 years. He has experience working with computers. He has experience working with the public as a customer service manager. He understands English. The Claimant’s background suggests that he has transferable labour market skills. But I am still satisfied that the Claimant had a severe disability by December 31, 2019.

[38] I do not believe that the Claimant could have performed any type of substantially gainful physical work because of anxiety by December 31, 2019. The Claimant testified that he felt overwhelmed after doing only three yards on in one day. I do not believe that the Claimant could perform any type of sedentary work because of anxiety by December 31, 2019. I do not believe that the Claimant could have handled a driving job because of difficulty sitting and anxiety. I do not believe that the Claimant could have handled any type of work that involved troubleshooting or problem solving. I do not believe that the Claimant could have worked productively at any type of job in a real world setting. I also accept the Claimant’s hearing evidence that he had difficulty performing his housekeeping tasks because of anxiety. I do not believe that the Claimant can work on a reliable and predictable basis because He testified that he goes through periods where his anxiety is under some control, but then something triggers it.

The Claimant tried to obtain and maintain employment

[39] If the Claimant has some work capacity in the real world, he must show that he tried to obtain or maintain a job. He must also show that the attempts to work did not succeed because of his health condition.^{Footnote 26}

[40] I am satisfied that the Claimant’s return to work effort at the bank after his August 2015 hospitalization ended in failure because of anxiety. I am satisfied that the work that the Claimant performed at the non-profit organization processing on-line ticket sales was not substantially gainful. He only made $6,000 at this job in 2018 to 2019 and $9,000 in 2019 to 2020 performing seasonal and part-time work. The Minister argued that had the Claimant worked for a whole year processing on-line lottery ticket sales, he would have engaged in a substantially gainful occupation.^{Footnote 27} However, I do not believe that the Claimant had the ability to work at that position for an entire year. The Claimant’s work with the non-profit organization was casual and seasonal. He worked flexible hours in accordance with his limitations. The non-profit organization said they accommodated the Claimant with a flexible schedule in a low-stress environment. They described the Claimant as being a person with special needs.^{Footnote 28} I agree with the Claimant’s legal representative that the Claimant’s employment with the non-profit was heavily accommodated. I do not believe that the Claimant can work productively in the real world on regular basis in a real world employment context because of his anxiety.

[41] I find that the Claimant’s yardwork and painting jobs were not substantially gainful. He only worked sporadic hours and earned little income at these jobs. I do not believe that these jobs showed that he had the capacity to regularly engage in a substantially gainful occupation.

[42] I also find that the Claimant taking spiritual counselling courses does not equate to work capacity. The Claimant takes these courses at his own pace. I also find that the Claimant working as a spiritual counsellor is not a realistic option for him. The Claimant conceded at his hearing that he had to work on his own mental health issues in order to be better able to help others. He apparently discussed starting a business when he visited his family doctor. But after reviewing the medical evidence and his testimony, I believe that the Claimant engaged in wishful thinking when he speculated on his ability to work. I find that having to meet deadlines in a productive work setting would trigger the Claimant’s anxiety to the point where he could not work on a regular basis.

The Claimant made reasonable efforts to follow recommended treatment

[43] The Claimant has made reasonable efforts to follow medical advice.^{Footnote 29}  The Claimant saw his family doctor. He saw a social worker. He took an anti-depressant medication. He tried spiritual counselling and meditation.  These treatments have not improved the Claimant’s functionality to the point that he could engage in substantially gainful employment.

Was the Claimant’s disability prolonged?

[44] The Claimant’s disability is prolonged.

[45] The Claimant’s condition began in 2015, was present when he left work at the bank in May 2016 and continues today.

[46] The Claimant’s family doctor provided the Claimant with an excellent prognosis. The Claimant’s family doctor believed that the Claimant had the ability to work at another job because his anxiety was related to dealing with a supervisor at the bank.  However, the family doctor’s prognosis turned out to be overoptimistic. The Claimant experienced anxiety when he worked at an accommodated job with a non-profit corporation, as well when he performed casual yardwork and painting jobs.

[47] The last medical records on file in June 2019 show that the Claimant had to go back on Cipralex and still suffered from anxiety.^{Footnote 30} 

Conclusion

[48] I am allowing this appeal. The Claimant’s disability became severe and prolonged in May 2016, when he last worked at the bank. There is a four-month waiting period before the disability pension is paid.^{Footnote 31} This means that payments start as of September 2016.