Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Claimant, Z. Z., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of July 2019. This decision explains why I am allowing the appeal.

Overview

[3] The Claimant is 39 years old. From February 2014 to December 2017, the she worked full-time as a senior software engineer in an office that was one hour from her home. Because of her worsening condition, her job was modified. In January 2018, she worked part-time from home with less responsibility. She was removed from leadership duties. She simply had to answer phone calls from clients who needed technology support. She said she could no longer work by June 2018 because of severe chronic fatigue and fibromyalgia.

[4] The Claimant applied for a CPP disability pension in June 2020.^{Footnote 1} 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 she cannot work because of body pain and extreme fatigue. She said she can only do a task for 30 minutes, before she needs to lay down and rest for several hours. She is housebound: she only leaves the house for medical appointments. She relies on her husband and parents to help her with her activities of daily living and caring for her three year old son.

[6] The Minister says while the Claimant may have limitations, the evidence does not show any severe condition that would have prevented her from performing suitable work by December 31, 2020 (the date by which she must prove her disability).

What the Claimant must prove

[7] For the Claimant to succeed, she must prove she had a disability that was severe and prolonged by December 31, 2020. This date is based on her contributions to the CPP.^{Footnote 2}

[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 3}

[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 4}

[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

Matters I have to consider first

I accepted the documents sent in after the deadline

[14] The email submitted by the Claimant’s representative from Dr. Dorbeck is relevant to the appeal.^{Footnote 5} It contains information that was not available earlier. This is why I agreed to accept this document even though it was received the day before the hearing. I allowed the Minister time to provide further submissions. The submissions were received September 21, 2021.^{Footnote 6}

Reasons for my decision

[15] I find that the Claimant had a severe and prolonged disability by December 31, 2020. I reached this decision by considering the following issues:

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

Was the Claimant’s disability severe?

[16] The Claimant’s disability was 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

[17] The Claimant has chronic fatigue and fibromyalgia.^{Footnote 7} However, I can’t focus on the Claimant’s diagnoses.^{Footnote 8} Instead, I must focus on whether she had functional limitations that got in the way of her earning a living.^{Footnote 9} 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 10}

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

What the Claimant says about her functional limitations

[19] The Claimant says that her medical conditions have resulted in functional limitations that affect her ability to work. She says:

• She worked from home on modified duties and reduced hours from January to June 2018. She stopped working because of severe chronic fatigue syndrome and fibromyalgia. She relied on her co-workers to answer the phone calls. She found it difficult to have a conversation due to headaches, fatigue and nausea.
• She stays in bed 60-70% of the day because of fatigue.
• Since early 2018, she cannot walk more than 15 minutes. She cannot even walk long enough to grocery shop. She has widespread pain all over her body.
• She has poor concentration, tremors, nausea and is sensitive to smell and sounds. She has a constant headache. She cannot concentrate or use a computer more than 20 minutes before her headache pain increases.
• She relies on her husband and parents to do the housework. She can only do 5-10 minutes of housekeeping before her pain increases and she needs to lay down.
• She does not have energy to do many activities of daily living including playing with her son, socializing with friends or going out for lunch.

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 December 31, 2020.^{Footnote 11}

[21] The medical evidence supports what the Claimant says.

[22] The Claimant’s fatigue started in June 2017.^{Footnote 12} It progressively worsened in 2018. Dr. Acker (rheumatologist) described it as of moderate to severe intensity. By the end of 2017, the Claimant had developed widespread body pain. By March 2019, the pain was of moderate intensity, but present all of the time and worsened with activity. In November 2017, the Claimant developed headaches, which are always present with varying intensity. In 2018, the Claimant developed nausea accompanied by retching. This lasts for a few days before improving for a few days and then returning. Dr. Acker diagnosed the Claimant with fibromyalgia and chronic fatigue.

[23] Dr. Ticoll (psychiatrist) determined that the Claimant did not meet the formal criteria for a mood or anxiety disorder in April 2020.^{Footnote 13} However, it was his opinion that the Claimant’s symptoms were consistent with somatoform symptom disorder since no diagnosis adequately explained her condition. He confirmed that his findings were consistent with the symptoms and limitations reported by the Claimant.

[24] In January 2021, Dr. Dorbeck (psychologist) reported that the Claimant continued to suffer significantly with primarily somatic difficulties and demonstrated notable reduced functioning.^{Footnote 14} It was his opinion that if the Claimant resumed her previous level of activity, including full-time employment, she would likely be unsuccessful.

[25] The Minister argued that the Claimant’s disability is not severe within the meaning of the CPP. However, chronic pain and fibromyalgia are conditions with a strong subjective component. The effect of the conditions on the particular individual must be the focus.^{Footnote 15} It is in this context that I considered the magnitude of the Claimant’s symptoms and the effect of the symptoms on her capacity to work. She described constant physical pain throughout the day, headaches, and fatigue all of which have prevented her from working since June 2018. Some of these symptoms may be atypical of fibromyalgia, but that does not make them any less real or debilitating.

[26] The very nature of fibromyalgia is such that it does not appear on diagnostic tests. Still the label of fibromyalgia is not sufficient to satisfy a severe finding and I must look at the effect on the individual.^{Footnote 16} The Claimant is unable to do the simplest household chore, and limited in any activity. She described having constant pains throughout her body, which were aggravated by activity. The symptoms and limitations reported by the Claimant are consistent with the medical evidence.^{Footnote 17}

[27] The medical evidence supports that the Claimant’s chronic fatigue and pain prevented her from regularly doing any activity for more than 30 minutes by December 31, 2020.

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

The Claimant has followed medical advice

[29] To receive a disability pension, the Claimant must follow medical advice.^{Footnote 18}

[30] In August 2019, Dr. Hew said there were many modalities to try to possibly improve to help the Claimant’s return to baseline and be a functional member of her family and society.^{Footnote 19} Unfortunately, the Claimant has had little success with medication. Dr. Hew said she was intolerant to medication. She had tried some but the side effects were not tolerated.^{Footnote 20} For example, the Claimant tried Cymbalta but this was tolerated poorly and stopped.

[31] In December 2019, the Claimant was seen at a pain clinic where she was prescribed Nortriptyline. She said this has helped a little as her headache and muscle pain has gone from a 7/10 to a 6/10.^{Footnote 21}

[32] Dr. Dorbeck recommended six months of active therapeutic intervention. He said with this, there was a 70% probability that the Claimant would reach a level of function that would allow her to resume many, if not all the meaningful activities she had previously engaged in.

[33] The Claimant had 40 therapeutic sessions between January and June 2021.^{Footnote 22} Dr. Dobeck said that overall, the Claimant had not made significant progress in treatment. The Claimant’s consistency with committed action kept declining. For example between January and March 2021, she could only do household chores for 20 minutes 57% of the time. She could only spend time with loved ones for 1 ½ hours 33 % of the time. She was supposed to do therapeutic reading for 30 minutes a day, but she could not do this. She testified that she tried to do the activities of the program, but pain and fatigue forced her to stop after 10-15 minutes or to even attempt the activity. She said every time after doing an activity for this short time, she would have no energy and need to lay down for up to five hours to rest.

[34] Pain and fatigue interfered with her completing the committed actions. By July 2021, Dr. Dorbeck noted that the Claimant had not made significant progress in treatment. The Claimant had a 46% success rate as she only completed 124 of 270 committed actions. Treatment was stopped in September 2021. Dr. Dorbeck said he did not feel that the treatment would provide any further benefit.^{Footnote 24}

[35] I recognize that this treatment happened after December 31, 2020. However, the information shows that in January 2021 when she started the treatment and when it ended, her functional capacity was essentially the same. She was able to do most activities for 30 minutes, but not on a consistent basis.^{Footnote 25}

[36] The Minister submitted that all treatment modalities have not been exhausted such as trials of alternate medications and regular psychiatric treatment.^{Footnote 26} However, the Federal Court says, it is the incorrect test to expect a Claimant to exhaust all reasonable forms of investigation and treatment. This is a requirement not found in the CPP.^{Footnote 27}

[37] I find that the evidence shows the Claimant has followed medical advice, but her condition has not improved.^{Footnote 28} She has not refused treatment and she has followed the recommendations of her doctors.

[38] 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 29}

The Claimant can’t work in the real world

[39] 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

[40] 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 30}

[41] I find that the Claimant can’t work in the real world.

[42] At the end of 2020, the Claimant was only 39 years. She speaks English fluently. She was born in China where she completed her public school education. In 2005, she completed post-graduate studies in information technology in Australia.

[43] She moved to Canada in fall of 2013. She has had only one job in Canada from February 2014 to June 2018 as a Senior Software Support Engineer. She would provide technical support to help solve software problems to customers by telephone. Earlier in her career, she worked in a retail store.

[44] Without considering her medical conditions, the Claimant would be well suited for many real world occupations. Retraining would also be appropriate.

[45] However, the Claimant’s muscle pain and extreme fatigue prevent her from being able to do any work in the real world. Physical roles, such as working in a retail store, are clearly not realistic. This would require her to stand and walk for lengthy periods. Also, her software and technical support skills are negated by her inability to sit for extended periods. Her headaches cause concentration and focus problems. These issues would also prevent retraining.

[46] The Claimant did attempt to return to modified duties with her employer. She was able to work from home, worked only 4-5 hours a day and did not work in a senior management position. Her job was simply to answer phone calls to provide technical support. Despite these modifications, the Claimant’s conditions worsened. She testified that she needed help from co-workers to cover her phone calls. She could not hold a conversation due to headaches, fatigue and nausea. By June 2018, she was only able to work for 10 minutes before “crashing” and needing to take a rest for four to five hours.

[47] Predictability is the essence of regularity within the CPP definition of disability.^{Footnote 31} The Claimant told me she is bedridden 60-70% of the day. After 30 minutes of activity, she needs to lay down and rest for 4-5 hours. The Claimant would not be a reliable employee and able to commit to any type of schedule, even part-time. She is incapable regularly of doing any type of work.

[48] I find that her disability was severe. The Claimant’s efforts show that, by December 31, 2020, she could not regularly do any work she could earn a living from.

Was the Claimant’s disability prolonged?

[49] The Claimant’s disability was prolonged.

[50] The Claimant’s conditions of fatigue, muscle pain and headaches began in 2017. These conditions have continued since then, and they will more than likely continue indefinitely.^{Footnote 32}

[51] In August 2019, Dr. Hew said the prognosis was unknown.^{Footnote 33} In April 2020, Dr. Ticoll said the prognosis for improvement was limited. The Claimant’s function remained poor after two years away from work.^{Footnote 34}

[52] More than three years of treatment has not improved the Claimant’s symptoms or function ability. The evidence does not show the Claimant’s conditions will resolve or improve with time or treatment. In fact, due to a lack of improvement, her most recent treatment with Dr. Dorbeck was stopped.

[53] I find that the Claimant’s disability was prolonged by December 31, 2020.

When payments start

[54] The Claimant had a severe and prolonged disability in June 2018 when her condition worsened and she was no longer able to work at even a modified job working part-time and from home.

[55] 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 35}

[56] The Minister received the Claimant’s application in June 2020. That means she is considered to have become disabled in March 2019.

[57] Payment of her pension starts as of July 2019.

Conclusion

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

[59] This means the appeal is allowed.