Canada Pension Plan (CPP) disability

Decision

[1] I am allowing this appeal. The Respondent is not entitled to a Canada Pension Plan (CPP) disability pension.

Overview

[2] The Respondent is a 41-year-old former heavy equipment operator with a history of drug addiction and mental health issues. In July 2018, he stopped working because of what he described as “serious anxiety.” He hasn’t worked since.

[3] The Respondent applied for a CPP disability pension in February 2020. He claimed that he could no longer do any kind of work because he couldn’t focus and had no tolerance for stress. The Minister of Employment and Social Development refused the application after determining that the Respondent did not have a severe and prolonged disability as of December 31, 2020, the last time he had CPP disability coverage. 

[4] The Respondent appealed the Minister’s refusal to the Social Security Tribunal’s General Division. It held a hearing by teleconference and allowed the appeal. It found that the Respondent’s psychological condition left him unable to handle pressure, take instructions, or work with others.

[5] The Minister then applied for permission to appeal the General Division’s decision. Earlier this year, one of my colleagues on the Appeal Division granted the Minister permission to proceed. Last month, I held a hearing to discuss the Respondent’s disability claim in full.

[6] Now that I have considered submissions from both parties, I have concluded that the Respondent is not entitled to a CPP disability pension. The evidence shows that the Respondent, while subject to some functional limitations, is not disabled from all forms of regular employment.

Preliminary matter

[7] In December 2022, the law governing the appeals to the Social Security Tribunal changed.^{Footnote 1} Under the new law, the Appeal Division, once it has granted permission to proceed, must now hold a de novo, or fresh, hearing about the same issues that were before the General Division.^{Footnote 2} As I explained at the outset of the hearing, that meant I would not be bound by any of the General Division’s findings. I also made it clear that I would be considering all available evidence, including new evidence, about whether the Respondent became disabled during his coverage period.

Issue

[8] For the Respondent to succeed, he had to prove that, more likely than not, he had a severe and prolonged disability during his coverage period. The parties agreed that the Respondent’s coverage ended on December 31, 2020.^{Footnote 3}

[9] A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 4} A claimant isn’t entitled to a disability pension if they are regularly able to do some kind of work that allows them to earn a living.

[10] A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.^{Footnote 5} The disability must be expected to keep the claimant out of the workforce for a long time.

[11] In this appeal, I had to decide whether the Respondent had a severe and prolonged disability before December 31, 2020, and whether he has had one ever since.

Analysis

[12] I have applied the law to the available evidence and concluded that the Respondent did not have a severe and prolonged disability as of December 31, 2020. I am satisfied that the Respondent’s health conditions do not prevent him from regularly pursuing substantially gainful employment.

The Respondent does not have severe disability

[13] Claimants for disability benefits bear the burden of proving that they have a severe and prolonged disability.^{Footnote 6} I have reviewed the record, and I have concluded that the Respondent did not meet that burden according to the test set out in the Canada Pension Plan. While the Respondent may experience depression and anxiety, I couldn’t find enough evidence to suggest that it prevented him from working.

[14] In his application for benefits, the Respondent wrote that his main disabling condition was anxiety. He said that he left his job in July 2018 because he could no longer handle pressure. He also said that he is easily distracted. He can’t focus. He has trouble learning new tasks. Even when he reads things many times, the information does not sink in. His brain is in a fog.

[15] He testified that dealing with other people causes him stress. He worries about meeting their expectations. Deadlines makes him anxious and leaves him sleepless. He avoids anything outside of his routine. He rarely leaves home now and is almost a hermit. He shops at night to avoid crowds. He will leave the store if he sees a big line-up.

[16] The Respondent says that, while he has made progress with his opioid addiction issue, his anxiety has become far more severe and resistant to medication. He maintains that, despite ongoing psychotherapy, he remains incapable of any work. He argues that, since he has a limited education and few transferable skills, he is effectively unemployable.

[17] Although the Respondent may feel that he is disabled, I must base my decision on more than just his subjective view of his capacity.^{Footnote 7} In this case, the evidence, looked at as a whole, does not suggest a severe impairment that prevented him from performing suitable work during his coverage period. From what I can see, the Respondent is subject to some limitations, but he is not incapable of regular employment.

[18] I base this conclusion on the following factors:

The medical evidence suggests that the Respondent’s mental health problems were situational

[19] The available evidence confirms that the Respondent has struggled with anxiety and depression since he was a teen. However, the evidence also suggests that his problems were made worse by situational factors that came to a head in 2018.

[20] The Respondent testified he was a heavy equipment operator for 10 years. He said that he developed a dependency on Percocet following a wisdom tooth extraction in 2009. It gradually got worse, and it eventually began to affect the quality of his work. He was already prone to anxiety, and it helped feed his opioid addiction.

[21] The Respondent testified that he eventually realized he had a problem. One day in July 2018, while he was digging a deep trench, a co-worker told him to get it together. The next day, he told his supervisor that he was going into detox.

[22] He checked into a facility in Kingston. After a six-week stay, he came out clean. He successfully completed a 12-week after care program in 2019. He says that he has been off all drugs, except cannabis, ever since.

[23] However, he has never gone back to work. He says that, even though he has beaten his addiction, he remains anxious in a way that he never was before he became dependent on painkillers. He says that breaking his addiction was only half the battle.

[24] I understand that the Respondent feels disabled, but his account is inconsistent with much of what the available medical evidence says about his condition. There is no doubt that the Respondent had a serious drug problem. In February 2017, the police brought him to the emergency department with a suspected overdose,^{Footnote 8} but he took steps to address his addition the following year. I find it telling that the Respondent left his job in July 2018, not just because of anxiety or depression, but to enter a drug rehabilitation program — a program that, by his own account, worked. The evidence also suggests that the Respondent’s mental health was being negatively affected by tension within his marriage — a marriage that broke up in March 2019.^{Footnote 9}

[25] The Respondent submitted several reports from Dr. Neumann, his family doctor. However, none of them offered compelling evidence of a severe disability:

• In May 2019, Dr. Neumann diagnosed the Respondent with drug addiction, anxiety disorder, and “mild” depression aggravated in part by marital stress. Dr. Neumann indicated that the Respondent had seen at least some treatment response.^{Footnote 10}
• In December 2019, Dr. Neumann wrote that the Respondent had attended detox in July 2018 and had been clean since that time. Dr. Neumann said that the Respondent’s medical condition continued to improve and that he expected him to return to his regular job in six to 12 months.^{Footnote 11}
• In March 2022, Dr. Neumann said that the Respondent had had generalized anxiety disorder with “mild” depression for many years. Dr. Neumann added that the Respondent was experiencing family stressors secondary to separation and custody issues, as well as stress related to COVID-19 isolation. He concluded that the Respondent was unable to safely perform his job as a heavy equipment operator, as he was required to move very heavy sewer components, which escalated his anxiety and caused panic attacks.^{Footnote 12}

[26] Dr. Neumann had an early hope that the Respondent would soon return to his old job. That never happened, but I find it notable that his most recent report, while barring the Respondent from operating heavy equipment, did not rule out a return to any or all kinds of employment.

[27] At the hearing, the Respondent expressed dissatisfaction with how Dr. Neumann had managed his care. He said that Dr. Neumann was rarely available and neglected to refer him to psychiatric counselling. He blamed Dr. Neumann for a gap in his medical file between December 2019 and March 2022.

[28] The gap, which encompasses the crucial period immediately before and after the end of his coverage period, does not help the Respondent’s case. The Respondent attributes the gap negligence, but it is just as likely that Dr. Neuman did not think his patient’s condition was serious enough to warrant further intervention. In his December 2019 report, Dr. Neumann noted that current treatment consisted of “conservative measures” — chiefly medication — that appeared to be working.

[29] The Respondent, who had lived in Scarborough, moved to Belleville after his marriage ended, putting a distance of more than 160 km between himself and his family doctor. The Respondent says that, when the COVID-19 pandemic began in early 2020, he tried without success to set up a telephone consultation with Dr. Neumann. He says that he then began a search for a new family doctor in Belleville, to no avail. Finally, he turned to his union, who put him touch with Pawel Biedrzycki, a registered psychotherapist.

[30] Still, it remains a fact that the Respondent was not receiving mental health counselling during the period most relevant to his CPP disability. And when he finally did get counselling, his psychotherapist did not unequivocally support his disability claim:

• In October 2022, Mr. Biedrzycki noted that the Respondent had completed self-report questionnaires with results suggesting a moderate level of depression and a severe level of anxiety. At that point, the Respondent had attended 20 psychotherapy sessions and seen “improvement in sleep hygiene, use of positive and healthy coping strategies and tolerance of stressful and anxiety provoking situations.” Although Mr. Biedrzycki emphasized that the Respondent was at a “crucially vulnerable stage,” he nonetheless found that the prognosis for recovery was “fair.” Mr. Biedrzycki added that the Respondent was not “yet” ready to return to work, implying that at some future date, he would be ready to do so.^{Footnote 13}
• In July 2023, Mr. Biedrzycki updated the Respondent’s progress after 47 psychotherapy sessions. Mr. Biedrzycki reported “severe” levels of major depressive disorder, general anxiety disorder and drug withdrawal syndrome, but his prognosis for recovery remained “fair.”^{Footnote 14}

[31] In sum, the Respondent’s family doctor reported anxiety and mild depression that seems likely to have been caused by situational factors that reached crisis points in 2018. Two years after the Respondent’s coverage period, his psychotherapist reported moderate depression and severe anxiety that he said was responding to treatment. Neither treatment provider ruled out an eventual return to work.

The Respondent’s pain complaints raise doubts about the reliability of his evidence

[32] Mr. Biedrzycki’s reports presented a mixed picture of the Respondent’s psychological condition. On one hand, they described a level of anxiety and depression that seemed markedly worse than what Dr. Neumann had documented a few years earlier. On the other hand, they held out the prospect of the Respondent recovering to the point where he might be able to do some kind of low stress work.

[33] Mr. Biedrzycki also highlighted the Respondent’s complaints of physical pain related to drug withdrawal syndrome:

[The Respondent] experiences daily back and muscle pains and headaches related to drug withdrawal syndrome. [The Respondent] reported experiencing back pain rated at 8.5 on a scale of 10, muscles pains rated 8 out of 10, and headaches rated 8 out of 10, and “sometimes even a 10 out of 10 when it gets really bad.”^{Footnote 15}

[34] I found it surprising that the Respondent experienced such severe withdrawal pain five years after he had supposedly kicked drugs. I found it even more surprising in light of the fact that he had apparently never mentioned such pain to his family doctor. Moreover, when the Respondent completed his application for the CPP disability pension in November 2019, he explicitly declared that he did “not have physical problems that limit [his] ability to work.”^{Footnote 16} At his hearing before the General Division, the Respondent did not mention pain either, except to explain that he was taking Naproxen because of longstanding migraine headaches, which he had experienced since he was a teenager.^{Footnote 17}

[35] In his hearing before me, the Respondent insisted that he continued to have drug withdrawal symptoms — including muscle pain and headaches — five years after beating his opioid addiction. When asked whether they contributed to his being disabled, he replied, “Well, they definitely don’t help” and surmised that his anxiety might be making pre-existing pain conditions worse.^{Footnote 18}

[36] This explanation notwithstanding, I see an inconsistency between what the Respondent declared in his November 2019 application and what he was telling his psychotherapist in 2022–23. The Respondent’s explanation for the inconsistency failed to clear up my confusion. If the pain arose recently — that is, after December 31, 2020 — then it did not contribute to any impairment that he might have had during his coverage period. But if the Respondent had pain symptoms during his coverage period, then he failed to disclose it to his family doctor. In the end, I concluded that it was more likely that the Respondent had overstated the extent of his pain in his psychotherapy sessions.

The Respondent’s background and personal characteristics don’t affect his employability

[37] Based on the medical evidence, I find that the Respondent had at least some capacity to work. I am reinforced in this belief when I look at the Respondent’s overall employability.

[38] When deciding whether the Respondent can work, I can’t just look at his medical conditions. I must also consider factors such as his age, level of education, language abilities, and past work and life experience. Employability is not to be assessed in the abstract, but rather in light of “all of the circumstances.” These circumstances help me decide whether the Respondent can work in the real world.^{Footnote 19}

[39] The Respondent has longstanding mental health issues and is prone to stress, but he has several assets that would have given him an advantage in a job search. He is a native-born English speaker and, by the end of his coverage period, he was only 38 years old. He is a high school graduate, has a lengthy work history, and has demonstrated capacity to acquire skills. 

[40] The Respondent, even with his impairments, has at least some capacity to work. However, as we will see, that capacity obliged him to at least attempt to find a new way of earning a living.

The Respondent has not attempted alternative employment

[41] A Federal Court of Appeal case called Inclima says that disability claimants must do what they can to find alternative employment that is better suited to their impairments:

Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.^{Footnote 20}

[42] This passage suggests that, if a claimant retains at least some work capacity, the General Division must conduct an analysis to determine (i) whether they attempted to find another job, and (ii) if so, whether their impairments prevented them from getting and keeping that job.

[43] On top of that, disability claimants must make meaningful attempts to return to work.^{Footnote 21} They cannot limit their job search to the type of work that they were doing before they became impaired. That is because they must show that they are regularly incapable of pursuing any substantially gainful occupation.^{Footnote 22} Claimants who fail to pursue alternative forms of employment may be ineligible for benefits. 

[44] In this case, the Respondent had at least some work capacity — enough to trigger the obligation to pursue employment that might have been better suited to his psychological temperament. However, the Respondent has not made any attempt to work, or look for work, since taking his leave of absence in July 2018.

[45] The Respondent testified that his anxiety condition made it impossible for him to return to his old job as a heavy equipment operator:

Something like a sewer main weighs up to 20 tons. If you're putting that into the ground, and you have four or five guys standing around trying to position it, and they only have a foot or two of space — you mess up, you could kill somebody.^{Footnote 23}

[46] I asked the Respondent whether he had considered a less stressful, less mentally demanding job — one that wouldn’t necessarily involve matters of life and death. He replied that he hadn’t: “I still haven’t resolved my issues. I’m still trying to fix me.”^{Footnote 24} He also said that he hadn’t applied for a job and didn’t even have a resume.^{Footnote 25} He said that there was no point in looking for any kind of work because he wouldn’t be able to offer an employer reliable performance.^{Footnote 26}

[47] Based on this evidence, I must conclude that the Respondent has not fulfilled this obligation under the Inclima case. He has never attempted to retrain or pursue alternative employment. He is therefore unable to show that he failed in either pursuit by reason of his disability. In the end, I was unable to assess the extent of the Respondent’s impairment as of December 31, 2020, because he never made a real effort to return to the employment market.

The Respondent does not have a prolonged disability

[48] A disability must be severe and prolonged.^{Footnote 27} The Respondent has not proved that his disability is severe, so I don’t have to assess whether it is also prolonged.  That said, the available medical evidence did lead me to doubt that the Respondent’s psychological impairments were indefinite, long continued, or likely to result in death. As noted, only a year before the end of the coverage period, Dr. Neumann thought it likely that the Respondent would sufficiently recover to allow him to return to his old job. Two years after the end of the coverage period, Mr. Biedrzycki deemed the Respondent’s anxiety as “severe” but still rated his prognosis as “fair.”

Conclusion

[49] There is ample evidence that the Respondent has mental health problems, but I am not convinced that they amount to a severe disability. The Respondent’s treatment providers have never barred him from returning to work. He has residual capacity but has never tried a job that might be less mentally and psychologically demanding than the one he had as a heavy equipment operator.

[50] The Minister’s appeal is allowed.