Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Claimant, A. F., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of July 2018. This decision explains why I am allowing the appeal.

Overview

[3] The Claimant was 51-years-old on the date of the hearing. The Claimant suffers from chronic pain, fibromyalgia, depression, anxiety, IBS (irritable bowel syndrome), anxiety and depression. The Claimant currently works one-to-three hours per week in her own business performing some accounting work for a few clients.

[4] The Claimant applied for a CPP disability pension on June 18, 2019. The Minister of Employment and Social Development (Minister) refused her application. The Claimant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[5] The Claimant says her functional limitations and chronic pain mean she cannot work at any substantially gainful employment.

[6] The Minister says the Claimant’s conditions were intermittent in nature and the treatments have remained conservative and non-exhaustive.

What the Claimant must prove

[7] For the Claimant to succeed, she must prove she has a disability that is severe and prolonged by the hearing date.^{Footnote 1}

[8] The Canada Pension Plan defines “severe” and “prolonged.”

[9] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2}

[10] This means I have to look at all of the Claimant’s medical conditions together to see what effect they have on her ability to work. I also have to look at her background (including her age, level of education, and past work and life experience). This is so I can get a realistic or “real world” picture of whether her disability is severe. If the Claimant is able to regularly do some kind of work that she could earn a living from, then she 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 Claimant’s disability can’t have an expected recovery date. The disability must be expected to keep the Claimant out of the workforce for a long time.

[13] The Claimant has to prove she has a severe and prolonged disability. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not she is disabled.

Reasons for my decision

[14] I find that the Claimant had a severe and prolonged disability by the hearing date of July 12, 2021. I reached this decision by considering the following issues:

• Is the Claimant’s disability severe?
• Is the Claimant’s disability prolonged?

Is the Claimant’s disability severe?

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

The Claimant’s functional limitations do affect her ability to work

[16] The Claimant has fibromyalgia, depression IBS, chronic pain, anxiety and depression. However, I can’t focus on the Claimant’s diagnoses.^{Footnote 4} Instead, I must focus on whether she has functional limitations that get in the way of her earning a living.^{Footnote 5} When I do this, I have to look at all of the Claimant’s medical conditions (not just the main one) and think about how they affect her ability to work.^{Footnote 6}

[17] I find that the Claimant has functional limitations.

What the Claimant says about her functional limitations

[18] The Claimant says her medical conditions have resulted in functional limitations that affect her ability to perform any substantially gainful employment. She says her chronic pain and fibromyalgia mean she cannot sit for more than 30-minutes or stand for more than 15-minutes.The Claimant further says her concentration is extremely poor and she makes errors when she tries to perform even simple accounting work. The Claimant also testified that her memory is poor and she struggles to perform even basic household tasks.

[19] I accept the Claimant’s testimony on her chronic pain and functional limitations because her statements were detailed, forthright, comprehensive, and consistent.

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

[20] The Claimant must provide medical evidence that shows that her functional limitations affected her ability to work by the hearing date.^{Footnote 7}

[21] The medical evidence supports what the Claimant says. For example, Dr. Huth reported in November 2020 that the Claimant suffered from fibromyalgia, migraine headaches, depression, IBS and Hypothyroidism. Dr. Huth’s report further referred to the Claimant’s significant symptoms of fatigue, non-restorative sleep, and cognitive impairments including decreased memory and concentration (GD4-4). I realize the Minister submitted that the Claimant’s conditions were intermittent in nature. However, Dr. Huth has described the Claimant’s functional limitations as “chronic” and “severe.”

[22] Furthermore, the report from Ms. Hammond (psychotherapist) also supports what the Claimant says. For example, Ms. Hammond writes that the direct and cumulative result of the Claimant’s mental health has resulted in a “substantial restriction” in her ability to perform her own personal care, function in the community, and find or keep employment (GD7-4). I recognize the Minister submitted that continued treatments for the Claimant would likely improve her condition so she could gradually increase her work hours at her accounting business. Nevertheless, I prefer Ms. Hammond’s assessment that the Claimant would not recover from her disabilities because her report was detailed and comprehensive.

[23] The medical evidence supports that the Claimant’s chronic pain, poor memory and concentration problems prevented her from performing regular accounting work.

[24] Next, I will look at whether the Claimant followed medical advice.

The Claimant has followed medical advice

[25]  The Claimant has followed medical advice.^{Footnote 8} For example, the Claimant has attended chiropractor treatment and massage therapy. The Claimant also takes naturopathic supplements and attends counselling for her mood. The Claimant has further tried various medications (including Flexeril, Cymbalta, Cipralex, Trazodone, and Remeron). I recognize the Minister submitted that the Claimant’s treatments were conservative and non-exhaustive. I gather the Minister was referring to the Claimant stopping her anti-depressant medication. However, I accept the Claimant’s testimony that she experienced side effects from anti-depressant medications because her statements on this matter were plausible and supported by Dr. Huth in his CPP medical report (GD2-252).

[26] I now have to decide whether the Claimant can regularly do other types of work. To be severe, the Claimant’s functional limitations must prevent her from earning a living at any type of work, not just her usual job.^{Footnote 9}

The Claimant can’t work in the real world

[27] When I am deciding whether the Claimant can work, I can’t just look at her medical conditions and how they affect what she can do. I must also consider factors such as her:

• age
• level of education
• language abilities
• past work and life experience

[28] These factors help me decide whether the Claimant can work in the real world—in other words, whether it is realistic to say that she can work.^{Footnote 10}

[29] I find that the Claimant can’t work in the real world because she has only performed accounting work in her own business for the past 21-years with few −if any− transferable skills for alternate sedentary work. I realize the Minister acknowledged the Claimant’s work activity and income posted for the last three years were “well below” substantially gainful. Nevertheless, the Minister argued this was consistent with the Claimant’s level of employment performed and not out of range with years previously posted. However, the Claimant has an employee who currently performs Income Tax accounting for the business. This particular employee was responsible for approximately 50 percent of the income of $5,995.00 that was posted by the business in 2020. In short, the Claimant was only responsible for just $3,000.00 of the income posted by her business in 2020.

[30] The Minister further submitted that the Claimant had the capacity to perform part-time work or employment with modified duties. However, the Claimant currently can only perform 1-to-3 hours of work per week for a few clients with no formal deadlines. On many days, the Claimant cannot perform any accounting work. In the final analysis, I simply cannot accept that the Claimant could perform regular part-time work owing to her functional limitations and chronic pain.

[31] I find that the Claimant’s disability was severe by the hearing date of July 12, 2021.

Is the Claimant’s disability prolonged?

[32] The Claimant’s disability is prolonged for the following reasons:

[33] First: The report from Dr. Huth explained that the Claimant’s conditions were chronic. Furthermore, Dr. Huth provided no indication the Claimant’s conditions were improving (GD4).

[34] Second: The report from the psychotherapist (Ms. Hammond) specifically indicated the Claimant had a “permanent” disability (GD7).

[35] Third: The oral testimony from the Claimant persuaded me her chronic pain, anxiety, depression, and functional limitations were not improving.

[36] In summary, the Claimant’s conditions started in 2004 to 2005. These conditions have continued since then, and they will more than likely continue indefinitely.^{Footnote 11} I find that the Claimant’s disability was prolonged by the hearing date of July 12, 2021.

When payments start

[37] The Claimant had a severe and prolonged disability in January 2018 when she had to significantly reduce her client base (and working hours) as a self-employed bookkeeper owing to her chronic pain and functional limitations.

[38] However, the Canada Pension Plan says a claimant can’t be considered disabled more than 15-months before the Minister receives their disability pension application. After that, there is a four-month waiting period before payments start.^{Footnote 12}

[39] The Minister received the Claimant’s application in June 2019. That means she is considered to have become disabled in March 2018.

[40] Payment of her pension starts as of July 2018.

Conclusion

[41] I find that the Claimant is eligible for a CPP disability pension because her disability is severe and prolonged.

[42] This means the appeal is allowed.