Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed in part. The General Division failed to properly consider the reasonableness of the Claimant’s refusal to comply with treatment recommendations, as well as the impact of her refusal on her disability status. The General Division also did not sufficiently consider whether the Claimant was incapable “regularly” of pursuing any substantially gainful occupation.

[2] I am substituting my own decision in the place of the General Division decision. However, the outcome remains unchanged because there is insufficient evidence of a severe and prolonged disability by the end of the Claimant’s minimum qualifying period. The Claimant is not eligible for a Canada Pension Plan disability pension.

Overview

[3] The Appellant, H. T. (Claimant), is appealing the General Division decision. The General Division found that the Claimant had not exhausted or participated in all recommended treatment, that her overall health did not regularly preclude all substantially gainful work by December 31, 2016,^{Footnote 1} and that she was employable and did not seek alternate work. Therefore, the General Division found that the Claimant did not have a severe disability under the Canada Pension Plan. The General Division concluded that the Claimant was not eligible for a Canada Pension Plan disability pension.

[4] The Claimant argues that the General Division made several legal and factual errors throughout its decision. The Claimant asks the Appeal Division to allow the appeal and give the decision that it says the General Division should have given. The Claimant argues that the evidence at the General Division shows that she has a severe and prolonged disability, as she claims that her ability to work has been very limited and extremely unpredictable since at least December 31, 2016.^{Footnote 2} The Claimant asks the Appeal Division to grant her a disability pension.

[5] The Respondent, the Minister of Employment and Social Development (Minister), argues that the General Division did not make any reviewable errors. The Minister asks the Appeal Division to dismiss the appeal.

[6] I find that the General Division did not sufficiently consider the reasonableness of the Claimant’s refusal to be treated by a psychiatrist and the impact of her refusal on her disability status. I also find that the General Division failed to consider the Claimant’s capacity “regularly” of pursuing a substantially gainful occupation.

[7] Despite its errors, however, I find that it would have made no difference to the outcome. There was insufficient evidence at the General Division to show that she met the criteria for a severe and prolonged disability under paragraph 42(2)(a) of the Canada Pension Plan.

Issues

[8] The Claimant raises several issues. The primary issues upon which I will focus are as follows:

1. Did the General Division base its decision on a factual error that the Claimant had not exhausted or participated in all recommended treatment?
2. Did the General Division make an error of law by failing to consider the reasonableness of the Claimant’s refusal to be treated by a psychiatrist and the impact of her refusal on her disability status?
3. Did the General Division fail to consider whether the Claimant was incapable “regularly” of pursuing any substantially gainful occupation?

Analysis

[9] The Appeal Division may intervene in General Division decisions if there are jurisdictional, procedural, legal, or certain types of factual errors.^{Footnote 3} The Appeal Division does not have any authority to conduct any reassessments or new hearings.

Background facts

[10] The Claimant applied for Canada Pension Plan disability benefits in September 2017. In the questionnaire accompanying her application, she claimed that she has been unable to work since 2005.^{Footnote 4} She also claimed that her health has been deteriorating since then.

[11] The Claimant was a self-employed journalist and writer. She was an occasional professor and instructor, and also marketed and sold products and services. She explained that she was increasingly unable to work because of overwhelming anxiety and depression. She claimed that the anxiety and depression caused other physical symptoms too, such as panic attacks, headaches, sleep difficulties, diarrhea, and chronic stomach issues. She found it hard to concentrate. She also had knee and wrist problems. She detailed her multiple functional limitations.^{Footnote 5}

[12] The Claimant’s family physician prepared a supporting medical report, dated September 16, 2017. He diagnosed her with chronic endogenous depression since 2007. She had been on an anti-anxiety medication for several years. He found that the Claimant had been more depressed in the past year. She found herself unable to manage her work as a journalist, and had trouble meeting deadlines. He would be referring her to a psychiatrist. He was of the opinion that her depression would deteriorate.^{Footnote 6}

[13] The Minister denied the Claimant’s application for disability benefits because it determined that the Claimant was still working.^{Footnote 7}

The reconsideration stage

[14] The Claimant asked the Minister to reconsider its decision. She denied that she was working any more because her symptoms had gotten worse. She wrote that she was experiencing greater prolonged fatigue, diarrhea, and sleeplessness, as well as shoulder pain with tingling in her upper extremities.^{Footnote 8}

[15] The Minister denied the Claimant’s request for reconsideration.^{Footnote 9} The Minister acknowledged that the Claimant has limitations and that she might not have been able to perform her usual work. But, it found that her condition did not stop her from doing other work in December 2016. Indeed, it found that she had worked sometime between February and August 2018 before she stopped working. This was after the end of her minimum qualifying period.

[16] On top of that, the Minister found that the Claimant’s condition could not have been that severe by the end of her minimum qualifying period if she did not require any inpatient hospitalizations or psychiatric intervention.

[17] The Claimant appealed the Minister’s reconsideration decision to the General Division.

The General Division decision

[18] The General Division found that the Claimant had not exhausted or participated in all recommended treatment. It found that she had unreasonably refused to attend an appointment with a psychiatrist. It also found that, apart from psychological or psychiatric treatment, the Claimant still had other treatment options open to her. The General Division found that, if the Claimant followed through with additional and recommended treatment, that there was the potential for improvement.

[19] The General Division also found that, although the Claimant had significant health concerns, she had some residual work capacity at the end of December 2016. The General Division also found that, despite the Claimant’s capacity, she did not seek suitable alternate work.

[20] The Claimant argues that the General Division made several legal and factual errors. I will address the most salient arguments.

Did the General Division base its decision on a factual error that the Claimant had not exhausted or participated in all recommended treatment?

Psychiatric treatment

[21] The Claimant argues that the General Division made an error of law by denying her appeal on the basis that she did not undergo treatment with a psychiatrist. She states that her family doctor re-referred her to see a psychiatrist. She is still waiting for a psychiatric appointment, which she plans to attend.

[22] The Minister argues that the General Division did not make any factual errors about whether the Claimant had exhausted or participated in all recommended treatment. The Minister notes that the General Division referred to both the Claimant’s testimony and the documents on file in its analysis.

[23] The General Division was aware of the Claimant’s evidence that her family doctor re-referred her to see a psychiatrist. The General Division noted this evidence.^{Footnote 10}

[24] In this case, the only treatment recommendation that the Claimant did not pursue by the end of her minimum qualifying period was counselling with a social worker. However, the General Division accepted that it was reasonable that the Claimant rejected this recommendation. The Claimant believed that counselling with a social worker would be of little benefit, particularly as a social worker is not a trained medical specialist in mental health issues.

[25] The General Division also determined that the Claimant refused to see a psychiatrist in both 2017 and 2018. This is consistent with the evidence. The Claimant does not deny that she had not exhausted or participated in all recommended treatment at those times. She says that she had a reasonable excuse to refuse treatment. I will consider this particular issue below, but in this section, will address whether the General Division made a factual error that the Claimant had not exhausted or participated in all recommended treatment.

[26] I find that the General Division did not make an error when it found that the Claimant had not pursued psychiatric treatment in 2017 or again in 2018.

[27] However, the General Division found that the Claimant’s refusal to seek treatment in both 2017 and 2018 was a basis upon which to find that she was not severely disabled. The Claimant argues that her refusal to attend treatment in 2017 and 2018 is irrelevant.

[28] The Claimant submits that recommendations made after the end of the minimum-qualifying period speak to the prolonged nature of a disability, rather than to the severity of a disability. In other words, the Claimant says the obligation to comply with treatment recommendations ends with the minimum qualifying period. So, she says it does not matter that she did not follow treatment recommendations in 2017 or 2018.

[29] In the case of Lalonde,^{Footnote 11} the Federal Court of Appeal held that Claimants have to submit to reasonable treatment recommendations. The Court of Appeal did not explicitly address the Claimant’s position that the obligation to comply with treatment recommendations ends at the minimum qualifying period.

[30] In J.S., the Appeal Division addressed this issue. The claimant in that case received a recommendation to attend a program after the end of the minimum qualifying period. The Appeal Division member found that the focus of the Canada Pension Plan is for a claimant to prove a severe and prolonged disability on or before the end of the minimum qualifying period. The member decided that, “accordingly, the focus of treatment efforts should also be during the [minimum qualifying period].”^{Footnote 12} The Claimant urges me to rely on this decision.

[31] More recently, the Appeal Division determined in A.H. that it “makes no difference whether that treatment comes during the coverage period or later.”^{Footnote 13} The Appeal Division member in that case reviewed both Lalonde and Sharma,^{Footnote 14} in which the claimants there either refused to accept medical advice or complied with it haphazardly.

[32] In Lalonde, the Federal Court of Appeal said that, as part of the “real world” context, the Board had to consider whether Ms. Lalonde’s refusal to undergo physiotherapy treatment was unreasonable and what impact that refusal might have on her disability status if the refusal was considered unreasonable.^{Footnote 15}

[33] And, in Angell, the Federal Court of Appeal held that a claimant must demonstrate an entitlement to disability benefits by reason of a severe and prolonged disability that existed prior to the expiry of the minimum qualifying period and continuously thereafter.^{Footnote 16}

[34] The member found that, in both cases, all reasonable therapeutic options had to be exhausted to assess a claimant’s inability to work. Effective treatment could reduce severity or prevent a condition from becoming severe. Ineffective treatment could confirm the severity of a condition or indicate that recovery had plateaued. The member found that, in both scenarios, treatment revealed something about whether a disability was severe and prolonged.

[35] The Claimant argues that A.H. is factually distinguishable, in that the claimant there received consistent medical advice to see a psychiatrist, unlike her own situation.

[36] I am not bound by decisions of the Appeal Division, but I find myself in agreement with the reasoning of my colleague in A.H. It seems that the obligation to comply with reasonable treatment recommendations is an ongoing one, even if it should arise after the end of the minimum qualifying period. It is an ongoing obligation particularly if the treatment might successfully reduce the severity of a claimant’s disability and enables that claimant to retain or acquire some capacity regularly of pursuing any substantially gainful occupation.

[37] It would seem that, even if a doctor does not provide an opinion on the expected outcomes following treatment, that there must be some potential or at least hope for some improvement. Otherwise, it makes no sense for a doctor to offer a treatment option, if the outcome is expected to be entirely futile.

[38] In this case, then, the General Division did not err when it found that the Claimant had not complied with reasonable treatment recommendations that she see a psychiatrist, even if these recommendations were made after December 31, 2016.

Anti-anxiety medications

[39] The General Division found that, even without exploring psychological or psychiatric treatment, the Claimant still had not exhausted all treatment options. The General Division found that the Claimant had been on the same single anti-anxiety medication since 2005, and that that had “really been the only treatment she has had for depression or anxiety.”^{Footnote 17}

[40] However, outside of any psychiatric referrals, I do not see any evidence that any of the Claimant’s treating health caregivers had made any other recommendations. While there may have been other treatment options open to the Claimant, one cannot fault her if she was unaware of and did not pursue these other treatment options. After all, it was reasonable for her to rely on her doctors and other health care professionals to make the appropriate recommendations.

[41] While the Claimant has been on the same single anti-anxiety medication since 2005, that does not necessarily mean her doctors have recommended that she try other medications. In fact, it appears that, the Claimant’s family doctor increased the dosage of Clonazepam from 0.5 mg to 2 mg sometime in 2017. I do not see any evidence that the Claimant resisted or refused the increased dosage.

[42] In short, as I do not see any evidence of other treatment recommendations, I find that the General Division based its decision on a factual error when it found that, outside psychological or psychiatric referrals, that the Claimant had not exhausted all treatment options.

Did the General Division make an error of law by failing to consider the reasonableness of the Claimant’s refusal to be treated by a psychiatrist and the impact of her refusal on her disability status?

[43] As the General Division noted, a claimant has to establish the reasonableness for why they have not abided by and submitted to treatment recommendations.^{Footnote 18} This means that the General Division had to examine what treatment recommendations the Claimant received, whether they were reasonable, and whether she had exhausted those treatment recommendations, but also whether any refusal to pursue these recommendations was reasonable.

[44] On top of that, the General Division also had to examine what impact that refusal might have had on the Claimant’s disability status if it considered the refusal unreasonable. This would include considering whether the treatment might have decreased symptom severity or increased the Claimant’s work capacity, or both, and to what extent. This was the test set out in Lalonde.

[45] The General Division found that the Claimant’s refusal to seek treatment with a psychiatrist was unreasonable.

[46] The Appeal Division granted leave to appeal on the basis that the General Division’s finding on this issue might have been made without considering the Claimant’s evidence about why she refused to see a particular psychiatrist, and that she was waiting for an appointment with another psychiatrist.

[47] The General Division wrote:

[11] The Claimant refused recommended treatment for her primary mental health condition on at least two separate occasions. In December 2016, Ms. Wilcocks, nurse practitioner, recommended counselling with a social worker. According to the Hearing File, the Claimant declined counselling because she did not think it would benefit her. Then, in October 2017, Dr. Wolder referred her to a psychiatrist, Dr. Mammoliti. When a staff member from that office contacted her to set up an appointment, the Claimant declined because she was not comfortable with how the intake call went. She felt that the office was not sensitive to her condition.

[12] The Claimant testified at the hearing that she refused seeing a social worker in 2016 because a social worker is not a doctor specializing in mental health. I can accept that as a reason for waiting to see a psychologist or psychiatrist. But, a short time later, she refused an appointment with a psychiatrist. I do not find the reason for that refusal to be reasonable. The Claimant also testified that she has been recently been re-referred to a psychiatrist and that she was waiting for an appointment. She does plan to attend.

[13] The Claimant’s representative submitted that the Claimant’s anxiety is a barrier to treatment itself. She has difficulty being in large groups and talking to others about her condition. According to the evidence on file, however, that is not why she refused treatment in 2016 and 2017.^{Footnote 19}

[My emphasis]

[48] The Minister argues that the General Division did in fact consider the reasonableness of the Claimant’s refusal. The Minister argues that the General Division’s assessment of the reasonableness of the Claimant’s refusal to follow recommended treatment is logical, intelligible, and consistent with the evidence.

[49] The Minister notes that the evidence shows that the Claimant declined to see a social worker because, “she did not feel it would benefit her.”^{Footnote 20}

[50] The Minister also notes that the Claimant’s family physician referred the Claimant to a psychiatrist in September 2017. A month later, the Claimant informed the psychiatrist that she did not want an appointment at that time and that she might want one in several months.^{Footnote 21}

[51] The Minister notes that, in January 2018, the Claimant’s family physician re-referred the Claimant to the psychiatrist. On February 22, 2018, the psychiatrist wrote to the family physician, advising that the Claimant had not returned her two voice mail messages earlier that month to schedule an appointment.^{Footnote 22}

[52] The Minister notes that the Claimant testified that her doctor had recently re-referred her to a psychiatrist and that she was waiting to schedule an appointment.^{Footnote 23} She apparently stated that it could take six months to a year for processing. However, the Minister notes that, apart from the fact that the Claimant did not provide any supporting evidence to show that she has a re-referral to a psychiatrist, the evidence on file shows that it does not take that long to schedule an appointment. In past, the psychiatrist attempted to schedule an appointment within a month of getting the referral.^{Footnote 24}

[53] The Minister argues that the General Division did not make a legal error. The Minister argues that the General Division considered all the evidence to find that the Claimant unreasonably refused treatment. The Minister also argues that the General Division did not err by giving little to no weight to the Claimant’s evidence regarding her refusal to seek treatment recommendations. The Minister argues that the Claimant did not give a reasonable explanation for her refusal.

[54] The Claimant argues that the General Division decision is not reasonable because it does not meet the test set out in a case called Dunsmuir.^{Footnote 25} The Claimant argues that the decision lacks justification, transparency, and intelligibility. The Claimant argues that the General Division failed to explain how it applied the principles set out in Lalonde and explain why it considered the Claimant’s refusal unreasonable. The Claimant further argues that the General Division failed to consider what impact the Claimant’s refusal had on her disability status.

[55] Further, the Claimant argues that there was no evidence anyway about whether the recommended treatment would have reduced the Claimant’s symptoms. The Claimant argues that the General Division was in no position to decide this issue against her without this evidence.

Findings on this issue

[56] On its face, the General Division appears to have considered the Claimant’s reason for her refusal. The General Division wrote that it [did] not find the reason for that refusal [to see the psychiatrist] to be reasonable.”^{Footnote 26}

[57] However, the General Division did not explain why it considered the Claimant’s refusal unreasonable. It did not analyze any of the evidence.

[58] At the General Division hearing, the Claimant explained that she did not see the psychiatrist in 2017 because she was uncomfortable with how the intake call went. She found the psychiatrist’s office was not sensitive to her condition. While the General Division referred to this evidence, it did not explain why this was unreasonable, against the backdrop of the Claimant’s documented history of anxiety.

[59] The General Division also did not refer to the relevant medical evidence about what might have contributed or led to the Claimant’s refusal. The family doctor’s clinical notes for October 13, 2017, confirm that the Claimant had cancelled the appointment. The doctor wrote, “Cancelled her psychiatric appointment feels she has a lot of anxiety given prevascid od samples given again.”^{Footnote 27}

[60] While the family doctor documented that the Claimant was having stress, admittedly it is not entirely clear from his notes whether the Claimant’s anxiety played any role in leading her to cancel the psychiatric appointment.

[61] Even so, the family doctor’s clinical notes could have been relevant towards explaining the Claimant’s discomfort with how the intake call went. Yet, the General Division does not seem to have considered the clinical notes, despite the fact that they could have had some impact on the outcome.

[62] Ultimately, the General Division could have decided that the clinical records were too vague, such that they would not have assisted the General Division determine whether the Claimant’s anxiety featured in her refusal to seek out a psychiatric consultation. But, the General Division did not give any indication, one way or the other, why it found the Claimant’s refusal unreasonable.

[63] The General Division was required to explain why it found the Claimant’s refusal unreasonable and what impact, if any, her refusal had on her disability status. The General Division did not address this latter point. The General Division’s analysis was insufficient. It failed to show how the member arrived at his conclusion on this issue on the evidence before it.^{Footnote 28}

Did the General Division fail to consider whether the Claimant was incapable “regularly” of pursuing any substantially gainful occupation?

[64] The Claimant also argues that the General Division failed to consider whether she was incapable “regularly” of pursuing any substantially gainful occupation. She argues that the General Division did not consider the “regular” aspect of the test for severity. After all, she had testified that she is unable to maintain any regular schedule. She says that her condition at December 31, 2016 was unpredictable. She claims that the evidence shows that there were some weeks when she was barely able to work three hours, while there were other weeks when she could not work at all.

[65] In her Application to the Appeal Division, the Claimant says that her ability to work was and remains very limited and “extremely unpredictable.”

[66] The General Division examined the Claimant’s multiple health complaints. The General Division noted the Claimant’s oral evidence that, in December 2016, she had up to four panic attacks per week, though there were many weeks when she did not have any panic attacks at all. The attacks were unpredictable, but they caused extreme fatigue to the point that she had to lay down and rest for several hours.^{Footnote 29}

[67] The General Division noted the Claimant’s evidence that she felt overwhelmed and had a constant feeling of dread. The General Division also noted the Claimant’s evidence that she had a really hard time completing her work and meeting deadlines, and that since 2011 or 2012, her anxiety caused nausea and diarrhea to the point that she could spend hours in the bathroom each day. Her stomach symptoms varied, depending on her stress and anxiety levels.^{Footnote 30}

[68] The General Division concluded that there was potential for improvement, if the Claimant followed through with additional and recommended treatment. The Claimant had yet to have any treatment for her aches and pains, and the General Division determined that the Claimant’s secondary symptoms of stomach issues, headaches, sleep problems, and fatigue could be improved with better control of her mental health condition.^{Footnote 31}

[69] While the General Division considered this evidence, it does not appear to have considered what impact the Claimant’s condition had on her capacity of “regularly” pursuing a substantially gainful occupation by the end of her minimum qualifying period of December 31, 2016. Its analysis was insufficient.

Remedy

[70] How can I fix the General Division’s errors? I have two basic choices.^{Footnote 32} I can substitute my own decision or I can refer the matter back to the General Division for reconsideration. If I substitute my own decision, this means I may make findings of fact.^{Footnote 33}

The Parties’ position

[71] The Claimant argues that the evidence establishes that she had a severe and prolonged disability by the end of her minimum qualifying period. She asks the Appeal Division to allow the appeal and give the decision that she says the General Division should have given. She says the General Division should have granted her a disability pension.

[72] The Minister argues that the General Division did not make any reviewable errors. The Minister asks the Appeal Division to dismiss the appeal.

[73] Alternatively, the Minister argues that, if the Appeal Division finds the General Division erred in law or in fact, it should substitute its own decision. The Minister argues that there is no basis to return the matter to the General Division, as the Claimant has already produced all of the evidence relevant to the minimum qualifying period. The Minister argues that the Canada Pension Plan clearly requires a focus on the medical evidence at the time of the minimum qualifying period.^{Footnote 34}

Deciding the appropriate remedy: substituting my own decision

[74] I have to decide the appropriateness of referring the matter back to the General Division for a redetermination or giving the decision that the General Division should have given.

[75] If the Claimant did not get a fair hearing, I would return this matter to the General Division. For instance, I would send this matter back to the General Division if it had restricted the Claimant from being able to reasonably make her case.

[76] But, the Claimant does not allege that she did not receive a fair hearing at the General Division. The General Division provided her with a chance to make her case. The General Division let the parties file supporting records and written submissions. The General Division held a hearing and let the parties give evidence. The hearing ran for close to two hours. The Claimant testified for much of that time.

[77] If there are significant gaps in the record, that might warrant sending the matter back to the General Division. This would involve gaps that fail to address basic issues, such as, for instance, a claimant’s past education and work history. But, there is no indication that the Claimant’s evidence would be materially different or that she would have anything further to add to the record if I were to send this matter back to the General Division.

[78] There is relatively little in the way of medical evidence and even less in the way of medical opinions, particularly on the issue of whether the Claimant had a prolonged disability by December 31, 2016. But, the reason there are few records is because the Claimant did not seek much medical treatment. For instance, she had yet to see a psychiatrist or any specialist in relation to her mental health issues. So, there are no records or opinions from any specialists, other than her own family doctor, that comment on the Claimant’s mental health at the end of her minimum qualifying period.

[79] The Claimant already produced the clinical records and a medical report of her family doctor. The clinical records include copies of an x-ray report of her left knee, lab work, and an optometrist’s report.

[80] The Claimant’s family doctor gave a diagnosis and prognosis. As he prepared his report several months after the Claimant’s minimum qualifying period had already ended, he was in a position to comment on the Claimant’s functionality and capacity. He noted that the Claimant had been more depressed in the past year. He documented the Claimant’s difficulties. He noted that she was unable to manage her work as a journalist and had trouble meeting deadlines. However, he did not relate any of these difficulties specifically to the end of the minimum qualifying period.

[81] There is no one else who the Claimant regularly saw around the time of her minimum qualifying period.

[82] Many years have passed since the end of the Claimant’s minimum qualifying period. Anyone new who the Claimant might see in regards to her medical issues would necessarily have to rely on the Claimant’s self-reporting, as well as the documentary record, to form any opinion on the Claimant’s capacity at the end of her minimum qualifying period.

[83] Those records are available to me. They show what the Claimant reported to her family doctor and nurse practitioner at the time. The Claimant’s self-reporting around the end of the minimum qualifying period are of particular significance for the purposes of any analysis of the Claimant’s overall condition and capacity.

[84] The records that were prepared around the end of the minimum qualifying period represent a reliable record of the Claimant’s condition at that time. I will substitute my own decision in the place of the General Division’s decision.

Was the Claimant severely disabled by the end of the minimum qualifying period?

[85] The Claimant maintains that she was severely disabled by December 31, 2016.

[86] In the application for disability benefits, the Claimant stated that she was under great stress, and had extreme anxiety and depression, accompanied by panic attacks, all of which left her unable to work, despite the flexible nature of her work. In addition, she claims that she also had sleep issues, inability to concentrate and focus, noise sensitivity, headaches, diarrhea and chronic stomach issues, anemia, back spasms and other body aches, a sore wrist, swollen knees, and asthma.

[87] The Claimant also claimed that she had numerous functional limitations. She listed her functional limitations in her questionnaire.^{Footnote 35}

The Claimant’s testimony at the General Division hearing

[88] The Claimant gave extensive testimony at the General Division hearing on May 21, 2021. She testified about her medical conditions. She testified about how her medical conditions have affected her. Her evidence included the following:

Work background

• The Claimant worked as a college professor for about 20 years, until December 2012 or January 2013. She stopped working then, as she felt very ill and overwhelmed because of anxiety and physical problems, such as panic attacks, sleep disorders, stomach issues, hearing loss, vertigo, skin rashes, anemia, and wrist issues with computer use. She missed perhaps one to two classes.
• From 2009 to 2012, she also worked as a journalist. She worked from 50 to 60 hours per week but in 2012, funding largely dried up. She could have pursued another contract but, at this point, felt unable to continue working much anyway.
• After 2012, she wrote occasional magazine articles. The hours of work varied each week, depending upon what was offered, but she noticed that it took her considerably longer to complete assignments because of her anxiety and stress. She had to ask for extensions to meet deadlines. She was paid on a project basis. She estimated that she earned $500 to $650 per project, which would take her a month to complete.
• The Claimant stopped working as a journalist in June or July 2018, when she submitted her last story. She refused work as recently as last summer because of her health issues.

The Claimant’s anxiety and depression

• The Claimant testified that she was diagnosed with anxiety and depression in 2005/2006. She had panic attacks, which left her unable to concentrate, a racing heartbeat, clammy hands, feelings of being overwhelmed and having to get away from others, and an inability to concentrate or focus.
• The panic attacks continued. She estimated that, in 2015, she experienced five to six per month, depending upon stressors. In 2016, she began to recognize these stressors, so tries to avoid them. She recognized that working as a professor is what caused her panic attacks. There was a constant feeling of dread, exhaustion, being emotionally overwhelmed and wanting to be alone. It would trigger her vertigo from the Ménière’s disease. A couple of times, she had to leave the classroom and find somewhere to lie down.
• Sleep disruption, part of her overall anxiety, began as early as 2005/2006. She fell asleep from exhaustion but would frequently awaken throughout the night. She would not get any restful sleep. Physically, it was very depleting for her.
• Early on, she tried Paxil but had adverse side effects, so switched to Clonazepam, which she continues to take. She does not recall when the Clonazepam changed from 0.5 to 2 mg, but thinks it may have been 2012/2013. She does not take any other medications for anxiety or depression, but she does breathing exercises and plans on seeing a psychiatrist.
• The Claimant states that she told Dr. Wolder as early as 2012 that she was having increasing problems with anxiety. She could not recall when he referred her to a psychiatrist, but guessed that it was maybe 2014. The General Division member noted Dr. Wolder’s September 2017 report, in which he spoke about referring her to a psychiatrist. The Claimant stated that the referral likely was at that time. The Claimant’s representative confirmed that there was no evidence in the hearing file to show that a psychiatric referral was made prior to 2017.
• The psychiatrist offered to schedule an appointment, but the Claimant did not follow through. She explained that she felt extremely overwhelmed and the person with whom she spoke was harsh and uncaring, and seemed unconcerned for her health and anxiety. The Claimant thought it was not going to be helpful to see the psychiatrist. She shared this experience with her doctor, who assured her it was uncharacteristic. The Claimant says that she is not against seeing a psychiatrist and says that she has another referral. She is still waiting to hear back but understands it can take several months or a year to get an appointment.
• A nurse practitioner recommended a social worker but she declined this because a social worker does not have a medical background.
• Other anxiety-related issues include digestion, stomach issues, and diarrhea. These are worse in the mornings. Most days she spends two to three hours in the bathroom. It comes and goes, depending upon how stressed she is. This all dates back to 2011/2012. Despite a careful diet, she still has these issues.
• The Claimant feels overwhelmed in crowds. She is unable to handle noise, or people close to her. She feels claustrophobic. She feels that she needs to get away from crowds by going outside and being alone in her car.

Ménière’s disease

• The Claimant was diagnosed with Ménière’s disease in 2005/2006. Before, it spontaneously erupted out of the blue and she could not do anything or go anywhere. There is no cure for the disease. She saw a specialist who prescribed Betahistine, which she finds lessens the frequency of attacks and keeps symptoms at bay. Even with medication, she can still experience attacks four times a week, usually when under great pressure or stress. Depending upon the severity of the attack, it can take 12 hours to a full day to recover. There are weeks in which she is fine.
• Symptoms include feeling unwell, fatigue, racing heart, clamminess, a sensation that everything around her is spinning, loss of balance, and vomiting. Before an attack occurs, she starts to feel a tingling at the back of her head, which is a cue to stop immediately what she is doing and to lie down. Or, if she could not lie down, she would have to crawl or drop down to get to a safe space.
• She last saw a specialist about two to three years ago. She also went to the audiology department where it was determined that she had 80 to 90% hearing loss in her left ear. There are no reports on file relating to her Ménière’s disease.

Other medical issues

• She has had longstanding right wrist pain, generally associated with working on a computer or digital device. Since 2016, the pain has improved somewhat because she stopped working. But, if she uses the computer for more than 30 to 60 minutes, she will experience flare-ups of pain. She had x-rays that may have been taken in December 2016. She takes pain relief medication such as Advil, and uses a wrist brace, but no one has recommended any treatment. She tries to limit her computer use. She gets tired after an hour. Using a smartphone causes stress.
• The Claimant testified that she experienced general aches and pain throughout her body in 2016. This included pain in her back, shoulders, and neck. She also had knee issues that started before 2016. The pain moved throughout her body. It appeared at difference places at different times. She also had unusual skin rashes that she assumes relates to her anxiety. She did gentle stretches for the aches and pain.

Activities and functional limitations

• The Claimant went to the gym maybe two to three times in 2016 and 2017, but did not feel well around crowds or noise.
• She was unable to lift heavy things or walk far, e.g. carrying groceries was limited, because of her aches and pain, her wrist, fatigue, general feeling of weakness and lack of motivation, which she attributed to her anxiety. She would only ever leave her house two to three times a week to run errands or attend medical appointments because she tried to avoid crowds, noise, and line-ups. She went during off-peak hours.
• She frequently cancelled medical appointments because she felt that she would not be able to cope going or being there. She tried to schedule appointments late in the day because of her digestive problems and sleep issues.
• Medical records describe the Claimant as the primary caregiver of her spouse and father. Her spouse was hospitalized perhaps in 2015 or 2016, but after that, a VON came to their house to help. Her spouse’s condition has somewhat improved since and he is able to care for himself.
• In terms of supports, recently, she has a VON who comes and helps every other work for one to two hours. The VON helps with basic things, which she no longer feels like doing because she feels overwhelmed at the thought of doing them. These include tasks such as vacuuming and sweeping. She is able to manage doing dishes. Her husband helps where he can. Safety bars have been installed in her home. She says that in 2016, they had to bring people in to help.
• As for her father, she took him to church once a week, when she felt up to it. She drives him to medical appointments every two to three months or so. Her father is independent but has a service that helps with housework. She helps when her father takes baths, to make sure he does not slip.

Reliability of evidence

[89] The General Division found the Claimant to be a credible witness. She was forthright in answering questions. For this reason, the Claimant urges me to accept her testimony without reservation.

[90] I do not question the Claimant’s sincerity about her condition and her functionality in December 2016. But, when a witness gives evidence relating to matters that happened months or years ago, there should be some other evidence to support that witness’s recollection. After all, one would not expect a witness to necessarily have a vivid recollection months or years later when events are no longer fresh.

[91] Generally, contemporaneous evidence is considered more reliable than a witness’s later recollection. If contemporaneous documentary evidence prepared close to December 2016 can sufficiently support the Claimant’s recollection as to what happened then, that would bolster the reliability of her testimony. On the other hand, if the Claimant’s testimony is inconsistent with and at odds with the 2016 documentary evidence, that could greatly undermine the reliability of her evidence.

[92] The Claimant relies on the questionnaire that she filled out for her CPP application. She described her symptoms and functional limitations in detail. She completed the questionnaire in February 2018, and says that the answers she gave regarding her condition and functionality accurately reflect what her condition had been like in December 2016.

[93] The difficulty with relying on the Claimant’s application and questionnaire, however, is the fact that even the Claimant readily acknowledges that her condition has gotten worse over time. For example, she wrote that she was working “very little as health deteriorates”^{Footnote 36} and, in terms of her activities, she stated that she avoided social activities “for years off and on esp. last several months”^{Footnote 37} and she stopped going to the gym “increasingly since 2016 approx.”^{Footnote 38} Her family doctor also recorded this in his clinical notes. The most reliable evidence of the Claimant’s condition at the end of her minimum qualifying period are records produced closest to that date in time.

Review of medical evidence

[94] The Claimant has Ménière’s disease, which causes dizzy spells. She says that, towards the end of her minimum qualifying period in December 2016, she was unable to predict whether she would be capable regularly of pursuing a substantially gainful occupation because of the dizzy spells. She might have also had panic attacks.

[95] However, there are no supporting medical records around December 2016 that address the Claimant’s capacity. Nothing in the medical records suggest, for instance, what could have caused the alleged unpredictable nature of the Claimant’s disability, how often any symptoms arose, or how they affected the Claimant’s capacity or functionality. There was little record about what limitations she encountered.

[96] The entries in the clinical records for June 3, 2016, show that the Claimant was feeling well, but stressed. Her doctor prescribed an anti-anxiety drug.^{Footnote 39}

[97] On November 9, 2016, her doctor diagnosed her with iron-deficiency anemia.^{Footnote 40}

[98] On December 14, 2016, the Claimant met with a nurse practitioner. The Claimant complained of anorexia, low energy, anemia, feeling cold, and a sore throat. Her main concerns was her sore throat. There was also a discussion over whether she was depressed. The Claimant had multiple stressors, including her husband’s multiple appointments and her father, for whom she was the primary caregiver. She lacked interest in sending Christmas cards. She was considering retirement.

[99] The nurse practitioner suggested a social worker, but the Claimant declined this, feeling it would not benefit her. Although she was socially withdrawn, the Claimant reported that she felt blessed. She had support from her family and religious community. She felt anxious, rather than depressed.^{Footnote 41}

[100] On December 30, 2016 and into early 2017, the Claimant’s discussions with her doctor centred on her right wrist. The Claimant had x-rays of her right wrist, which according to the doctor’s notes in March 2017, were normal. There was no fracture but, according to the doctor’s notes of January 2017, the x-rays shows that the Claimant had arthritis.^{Footnote 42}

[101] The Claimant saw her family doctor on June 16, 2017, for a routine physical. She complained of a rash. At this point, the records show that the doctor had increased the dosage of the anti-anxiety medication from 0.5 mg to 2 mg, although it is unclear when the increase first took place.^{Footnote 43}

[102] In her visit of September 15, 2017, the Claimant reported that she was “very stressed out” and that she could not manage her job. Her family doctor diagnosed her with severe depression. Her family doctor referred her to a psychiatrist shortly after this visit.^{Footnote 44}

What the medical evidence says or does not say

[103] None of the entries in the medical records spanning from June 2016 to June 2017 address the issue of whether the Claimant was incapable regularly of pursuing a substantially gainful occupation. Although it is clear that, in mid-December 2016, the Claimant was facing multiple stressors, and that she was considering retirement, there was no discussion about whether she was able to “regularly” work or pursue a substantially gainful occupation. The first discussion of this arose in mid-September 2017, months after the end of the minimum qualifying period.

[104] The Claimant says Ménière’s disease left her severely disabled by the end of her minimum qualifying period in December 2016. Yet, no records showed how Ménière’s disease affected her at that time. While the disease is progressive, the records do not show whether, in the Claimant’s case, it worsened slowly or quickly, whether there were periods of remission and, if so, for how long, and whether it was managed by medications.

[105] Similarly, there was little evidence regarding the Claimant’s anxiety and depression, and no evidence in the records about the impact they, along with her other medical issues, cumulatively had on her capacity regularly of pursuing a substantially gainful occupation, until September 2017.

[106] The Claimant urges me to accept her oral testimony and questionnaire as proof that she was severely disabled by December 31, 2016. However, the medical evidence at the minimum qualifying period simply does not support the Claimant’s oral evidence at the General Division or her questionnaire, that she was unable to regularly pursue any substantially gainful occupation at that timeframe. The records describe the Claimant’s complaints, but they do not say how they affected her capacity. For this reason, I do not find her evidence necessarily reliable, even if the Claimant does hold a sincere belief that she was severely disabled at the end of her minimum qualifying period.

[107] Further, the Claimant’s family doctor reported that the Claimant had become more and more depressed in the past year, to the point that the Claimant could no longer manage her daily work as a journalist and had trouble keeping deadlines.^{Footnote 45} This description suggests that the Claimant retained the capacity regularly of pursuing a substantial gainful occupation until at least the point that the Claimant could no longer manage her daily work. But, he prepared his report in September 2017, months after the minimum qualifying period had ended.

[108] The family doctor did not pinpoint a particular date when the Claimant arrived at this point, but his reference to this occurring sometime “in the past year” likely was in 2017, after the minimum qualifying period had already passed. I draw this conclusion, based on the clinical records.

[109] The clinical records between mid-2016 and mid-2017 suggest that the Claimant was not incapable regularly of pursuing a substantially gainful employment. After all, the records show that she first discussed her inability to manage at work with her family doctor in only September 2017. If the Claimant was having such issues as far back as December 2016 or in early 2017, surely she would have mentioned these during her visits in December 2016, or in January, March or June 2017.

[110] This is not to diminish the Claimant’s condition. Clearly, her anxiety and Ménière’s disease have been longstanding issues. She has had other complaints too. And, clearly she was feeling stress and anxiety leading up to December 2016. But, the medical records fall short of establishing that she was severely disabled by the end of her minimum qualifying period.

Prolonged test

[111] The test for a disability under the Canada Pension Plan has two parts. If the claimant does not meet one aspect of this two-part test, then they will not meet the disability requirements under the Canada Pension Plan. As the Claimant has not established that she has a severe disability, it is unnecessary to undertake an analysis of the prolonged criterion. As the Federal Court of Appeal stated in Klabouch, “[the] two requirements of paragraph 42(2)(a) of the [Canada Pension Plan] are cumulative, so that if an applicant does not meet one or the other condition, his application for disability pension under the [Canada Pension Plan] fails.”^{Footnote 46}

[112] However, even if the Claimant had established that she was severely disabled by December 31, 2016, I would have also determined that she does not meet the prolonged criterion.^{Footnote 47}

[113] A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.^{Footnote 48} There is little in the medical evidence regarding the prolonged nature of the Claimant’s disability. The Claimant’s family doctor wrote that, in the past year, she had become more and more depressed. This showed that the Claimant had been depressed for some time.

[114] The family doctor was of the opinion that the Claimant’s depression was deteriorating. But, this said little about the Claimant’s prognosis. The family doctor wrote that he would refer her to a psychiatrist, but he did not offer any opinion as to whether he expected the Claimant to respond to this treatment and, if so, to what extent, or whether he expected that she would continue to deteriorate and be unable to regularly pursue any substantially gainful occupation. He also did not say whether there were any available options that a psychiatrist could recommend. I recognize that a psychiatrist has more expertise to offer an opinion on the Claimant’s prognosis, but the Claimant has yet to see one.

[115] Without more information, I simply cannot draw any conclusions regarding the Claimant’s prognosis by the end of her minimum qualifying period.

[116] I recognize that Ménière’s disease is progressive and that there is no cure, but again, the medical evidence is lacking. It does not show that the disease, either alone or together with the Claimant’s other issues, rendered her disability severe and prolonged at the end of her minimum qualifying period.

Conclusion

[117] The appeal is allowed in part. The General Division erred but it does not change the outcome. I am substituting my own decision for that of the General Division. The Claimant is not eligible to receive a disability pension.