Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Appellant, W. B., isn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant used to work as an administrative assistant. In December 2003 she was in a terrible boating accident. She hasn’t recovered from the accident, physically or mentally. She has post-traumatic stress disorder (PTSD). She is depressed, tired, and anxious. She has pain all over her body.

[4] The Appellant didn’t go back to her old job. She has had several different jobs since the accident. She has struggled because of her medical condition. She was fired from one job because she was too slow. In another, she had to switch to part-time hours because she was in too much pain. She didn’t work at all in some years. Most recently, she worked as a cleaner in two businesses where her son was a part-owner. She says her son employed her out of compassion, and that she wouldn’t be able to work anywhere else.

[5] The Appellant applied for a CPP disability pension in November 2019. The Minister of Employment and Social Development (Minister) refused her application. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

What the Appellant must prove

[6] For the Appellant to succeed, she must prove she has a disability that was severe and prolonged by June 30, 2019. This is because she started getting a CPP retirement pension in July 2019.^{Footnote 1}

[7] If the Appellant can’t prove she was disabled by June 30, 2019, she may be eligible for a post-retirement disability benefit (PRDB). The PRDB is for people between ages 60 and 65 who become disabled in or after the month they started receiving their CPP retirement pension.^{Footnote 2}

[8] To get the PRDB, the Appellant has to prove she has a disability that became severe and prolonged after June 30, 2019.

What “severe” and “prolonged” mean

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

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

[11] A disability is severe if it makes an appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 3}

[12] A substantially gainful occupation is one that pays as much or more than the maximum amount of a CPP disability pension.^{Footnote 4} In 2018 the amount was about $16,000.00. It goes up every year. In 2022 it is about $17,600.00.^{Footnote 5}

[13] A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.^{Footnote 6}

[14] This means the Appellant’s disability can’t have an expected recovery date. The disability must be expected to keep the Appellant out of the workforce for a long time.

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

Reasons for my decision

[16] I find that the Appellant hasn’t proven she had a severe and prolonged disability, either before or after June 2019.

The Appellant’s disability isn’t severe

[17] The Appellant’s disability isn’t severe. I recognize she has struggled with her health. It is hard for her to work. But the most recent medical evidence shows she can regularly work part-time at substantially gainful employment. Her work efforts also show this.

[18] I reached this finding by considering several factors. I explain these factors below.

The Appellant’s functional limitations affect her ability to work

[19] The Appellant has functional limitations that affect her ability to work.

[20] I can’t focus on the Appellant’s diagnoses.^{Footnote 7} I have to focus on whether she has functional limitations that get in the way of her earning a living.^{Footnote 8} When I do this, I have to look at all of her medical conditions (not just the main one) and think about how they affect her ability to work.^{Footnote 9}

What the Appellant says about her functional limitations

[21] The Appellant says her physical health issues (including bursitis, widespread pain, carpal tunnel syndrome, and damage to her left hand) cause these functional limitations:^{Footnote 10}

• Vacuuming, mopping, and lifting are difficult because of lower back pain.
• She gets pain in her feet and hip when walking or standing.
• She has trouble getting up from a kneeling position.
• She can’t hold her arms over her head.
• Her right arm and hand have improved since she had carpal tunnel surgery but they hurt if she uses them, and three of her fingers go numb.
• Two of the fingers in her left hand have no feeling because of the boating accident. She has trouble holding anything. She often drops things like glasses and bottles. She is waiting to have carpal tunnel surgery.
• She types very slowly because of the problems with her hands.
• Because of her pain, she has to take short breaks every hour.

[22] The Appellant says her mental health issues (including PTSD, post-concussion syndrome, anxiety, and depression) cause these functional limitations:^{Footnote 11}

• She gets anxiety attacks about leaving the house. Sometimes it takes her two or three hours to get out the door. She often has to cancel plans.
• She is nervous around other people. This causes anxiety attacks, so she avoids socializing and social interactions.
• She is forgetful. She forgets how to get to places unless she goes all the time. She has to write things down and make lists. She can’t remember what she has seen on TV or what she has read. She forgets verbal instructions and conversations. She can learn new things but then she forgets them.
• She has disturbing flashbacks from the accident. She wakes up in the night and she has to sleep with the lights on. Because she doesn’t sleep well, she is tired all day. Sometimes she has to nap during the day.

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

[23] The Appellant must provide some medical evidence that supports that her functional limitations affect her ability to work.^{Footnote 12}

[24] The medical evidence shows the Appellant suffered badly after the accident, both mentally and physically.^{Footnote 13}

[25] Dr. Hamilton has been the Appellant’s family doctor since 2015. His notes for 2018 show the Appellant complained of things like poor sleep, stress, aches, and significant fatigue. When she got home from work, she was too exhausted to do anything else.^{Footnote 14}

[26] Dr. Hamilton wrote the November 2019 medical report for the Appellant’s disability application.^{Footnote 15} In the report, he said the Appellant had PTSD and major anxiety disorder since the accident in 2003. Because of these conditions, she had the following impairments:

• coping deficit in stressful situations
• anxiety attacks
• short-term memory deficits
• poor sleep
• feeling depressed and anxious
• rumination
• trouble relaxing
• poor appetite

[27] Dr. Hamilton said these impairments were continuous. They led to reduced job performance with poor concentration and problem-solving difficulties.^{Footnote 16}

[28] Dr. Hamilton noted the Appellant hadn’t had a full-time job since the accident. He didn’t know if she would be able to return to any type of work in the future. If she did, he expected she would only be able to do modified work. He noted she currently had very limited work ability and at the time she was working seven hours a week in a family business. He said the Appellant had a “chronic limitation of 16 hours max weekly” at the family business. He expected her condition would remain the same.^{Footnote 17}

[29] Dr. Hamilton also noted the Appellant had right carpal tunnel syndrome. Her symptoms started in the spring of 2019. She had numbness and tingling causing reduced grip strength and pain. The Appellant had a carpal tunnel release in October 2019. He expected she would improve within the year, but might have a carpal tunnel release on her left wrist in future.^{Footnote 18}

[30] The medical evidence supports that the Appellant’s functional limitations combined to prevent her from working for more than 16 hours a week.

The Appellant can work despite her functional limitations

[31] The Appellant can work despite her functional limitations.

[32] By working 16 hours a week on average, the Appellant earned a substantially gainful income from 2018 to 2020, and in 2022. There is no medical evidence to show she can’t still do that.

[33] From January 2018 to September 2019, the Appellant worked as a cleaner in her son’s nightclub. She was paid $20 per hour. Her job was to clean the club before it opened at 9 p.m. She had all day to get this work done, so she went in when she felt able to and she took breaks as needed. If she was in pain, she would go home for an hour or so. She worked alone so no one knew if she was there or not. Some days she could only work for one hour. Other days she managed to work for seven hours. She usually worked from one to four hours a day. Eventually she stopped working on the weekends because there was too much to do and she found it too hard.

[34] The Appellant stopped working in September 2019 to have surgery for carpal tunnel syndrome. She went back a few months later. The club had to close in early 2020 because of the COVID-19 pandemic. In March 2022, the Appellant started working again in a different pub where her son was also a part-owner. She stopped after two months because her son and his partner sold the business. She hasn’t worked since then.

[35] The Appellant’s records show what she earned from her job:^{Footnote 19}

• In 2018, she earned $20,371.00.
• In 2019, she earned $19,289.00.
• In 2020, she earned $4,066.00.

[36] These are all above the substantially gainful amount.^{Footnote 20} That includes 2020, because the Appellant worked for less than three months before the nightclub closed in early March.

[37] I don’t know the Appellant’s income for 2022, but she told me she worked for 12 to 20 hours each week, for $20 per hour. If she worked that much for the rest of the year, her income would be above the substantially gainful amount for 2022.^{Footnote 21} 

The Appellant didn’t have a benevolent employer

[38] The Appellant didn’t have a benevolent employer.

[39] If the Appellant had a benevolent employer, it could mean she wasn’t actually capable of working at her job, despite what her doctor said and what her income showed.

[40] A benevolent employer will change working conditions and lower their expectations if an employee has limitations. They expect significantly less from the disabled employee than from other employees. They accept that the employee can’t work at a competitive level.^{Footnote 22}

[41] This doesn’t describe the Appellant’s cleaning jobs. The Appellant probably got the jobs because of her son. But many people hire family members. It doesn’t mean they are benevolent employers.

[42] The Appellant may not have had to do the heavy, hard work that many cleaners do. But she had regular duties. She worked by herself, without help. Her employer must have expected that she would do the job properly. The fact that she could take breaks and start work when she wanted means the job was flexible, not that she had a benevolent employer. That kind of accommodation is expected in a competitive job market.

The Appellant is capable regularly of working at a substantially gainful rate

[43] The Appellant is capable regularly of working at a substantially gainful rate. She took breaks at work and had flexible hours, but she didn’t miss significant amounts of time because of her medical condition. The only time she stopped working because of her health was to have surgery in late 2019. She returned a few months later. There isn’t any medical evidence to explain why she didn’t work between March 2020 and March 2022.

[44] The last medical opinion is from Dr. Hamilton in November 2019. There is no medical evidence to show the Appellant can no longer work 16 hours per week. She told me she would still be working if the pub hadn’t been sold, although she felt she wasn’t getting her work done and she doesn’t know how long her son’s partner would have put up with her.

[45] There is no information from the Appellant’s employer about her job performance. Therefore I find it is likely she was still employed when the pub was sold because she was capable regularly of doing her job.

The Appellant can work in the real world

[46] The Appellant can work in the real world.

[47] To be severe, the Appellant’s functional limitations must prevent her from earning a living at any type of work, not just her usual job.^{Footnote 23}

[48] When I am deciding whether the Appellant 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, and past work and life experience. These factors help me decide whether the Appellant can work in the real world—in other words, whether it is realistic to say that she can work.^{Footnote 24}

[49] The Appellant is 64 years old. She has limitations. However, the evidence shows that she can work 16 hours per week, despite her age and her limitations. She is capable regularly of substantially gainful employment. This means her disability isn’t severe.

Conclusion

[50] I find that the Appellant isn’t eligible for a CPP disability pension because her disability isn’t severe. Because I have found that her disability isn’t severe, I didn’t have to consider whether it is prolonged.

[51] This means the appeal is dismissed.