Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Appellant, A. L., is eligible for a Canada Pension Plan (CPP) disability pension. Payments start as of May 2020. This decision explains why I am allowing the appeal.

Overview

[3] The Appellant was 42 years old in April 2021 when she applied for a CPP disability pension. She had worked at an office job for 14 years. She stated that she had been unable to work since January 2020 because of her mental health conditions. These were the result of a high conflict separation and custody dispute with J. C., her former common-law spouse (J. C.). He is also the father of her five-year-old son.

[4] The Minister refused the Appellant’s application initially and on reconsideration. The Appellant appealed the Minister’s reconsideration decision to the Social Security Tribunal’s General Division.

[5] The Minister stated that the Appellant is not entitled to a CPP disability pension. Her condition is likely to improve. In addition, she has made no effort to return to work or find alternate work.

What the Appellant must prove

[6] For the Appellant to succeed, she must prove that it is more likely than not that she has a disability that was severe and prolonged by December 31, 2026.^{Footnote 1} Because this is after the hearing date, the question is whether the Appellant suffered from a disability under the CPP by the date of the hearing.

[7] The CPP defines “severe” and “prolonged.”

[8] A disability is severe if it makes an appellant incapable regularly of pursuing any substantially gainful occupation.^{Footnote 2} If the Appellant can do some kind of work that she could earn a living from, then she isn’t entitled to a disability pension.

[9] A disability is prolonged if it is likely to be long continued and of indefinite duration.^{Footnote 3} The disability must be expected to keep the Appellant out of the workforce for a long time.

Issues

[10] Do the Appellant’s health conditions result in her having a severe disability?

[11] If so, is her disability long continued and of indefinite duration?

The Appellant’s disability is severe

[12] The Appellant was diagnosed with depression and anxiety.^{Footnote 4}

[13] However, I can’t focus on her diagnoses.^{Footnote 5} Instead, I must focus on whether she had functional limitations that got in the way of her earning a living.^{Footnote 6} When I do this, I have to look at all of the Appellant’s medical conditions (not just the main one) and think about how they affect her ability to work.^{Footnote 7}

The Appellant’s account

[14] The Appellant explained that her major problem is her mental health.

[15] In her CPP application of April 2021, the Appellant’s stated that she had psychosocial and environmental problems, emotional issues , anxiety, stress, nausea, indigestion, tension, and fear. She also had irritated eyelids, swollen feet and ankles, and occasional foot pain.^{Footnote 8}

[16] The Appellant stated that she had tension in her neck and shoulders that worsened when she used a computer or was under stress. Stress also made her eyelid condition worsen.^{Footnote 9} She had trouble focusing.

[17] In her reconsideration request of January 2022, the Appellant stated that she had a three-year-old child with J. C. He was a police detective. She left him in January 2019. A year later, he showed up at her workplace, where he intimidated her and her co-workers. He had to be escorted out by the police - but threatened to appear at her job site again. In addition, he failed to pay money he owed her on a timely basis or release the funds from their jointly owned home.^{Footnote 10}

[18] At the hearing, the Appellant testified that her symptoms began in 2019. They worsened after the January 2020 incident at work. They continue to worsen and now occur every day. She stated that she is anxious, tired, and frustrated. She has headaches and is often sick. She has tense muscles in her shoulders. In addition, the Appellant stated that she has psychological symptoms. She finds it hard to concentrate. For example, when having a conversation, she sometimes can’t remember what someone has just said. She also has frequent panic attacks.

[19] The Appellant’s mother, M. L., testified that the Appellant is “no longer herself.” She is very emotional and always crying. She is always on edge. She is tired and often ill. She used to travel a lot and socialize. She no longer does this.

[20] The Appellant stated that she has more bad than good days. On a good day, she can do more housework in the home she shares with her parents and son. On a typical day, she makes lunch for her son, takes him to school and picks him up, and then plays with him on equipment in the yard. She may take him to the park. On a bad day, her parents will do most of the housework and help her look after the boy.

[21] The Appellant also testified that she has swelling of her feet and ankles. This makes it hard for her to stand or sit for any length of time.

[22] The Appellant also has problems with allergies and breathing. She saw an allergist/asthma specialist the week before the hearing.^{Footnote 11} She will see an ear, nose, and throat specialist in the near future.

[23] I asked the Appellant about the progress of her family law case involving custody, access, and financial matters. She stated that the court has determined the financial issues. The other matters should go to mediation. However, J. C. won’t attend mediation and won’t discuss the issues. So legal matters remain unresolved. They continue to upset and frustrate the Appellant.

[24] The Appellant’s mother, M. L., stated that J. C. was controlling and difficult. When the Appellant was still living with him, he physically abused her. In addition, he needlessly creates issues on an ongoing basis. This means that someone has to go with the Appellant when she’s dropping off her son with his father or picking him up so that there’s a witness to the exchange. J. C. also says things that aren’t true. For example, he falsely said that the Appellant had sent their child to school with holes in his boots.^{Footnote 12} The Appellant has to document and photograph everything to protect herself against untrue allegations. In addition, J. C. upsets his son, and that upsets his mother.

[25] M. L. testified that, as a police officer, J. C. understands the system and uses this to his advantage.^{Footnote 13} She stated that the Appellant is engaged in a constant struggle that is “exhausting and draining.” She always has to be on her toes.

[26] At the hearing, the Appellant became tearful or actually wept every time the subject of her dealings with J. C. came up. I had to call for a five-minute break early in the hearing to allow her to calm herself.

The medical evidence supports the oral evidence

[27] In June 2017, Dr. Robert Maggisano, vascular surgeon, saw the Appellant for right foot and ankle swelling. He diagnosed lymphedema tarda, localized swelling caused by a compromised lymphatic system. He recommended compression stockings and education about leg health.^{Footnote 14}

[28] In September 2020, Dr. Vilma Tan-Jarvis, family doctor, stated that the Appellant’s symptoms first appeared in January 2019. She first sought medical attention for them in January 2020. Her results on standard psychological tests showed severe anxiety and moderately severe depression. These were provoked by “multiple psychosocial and environmental stressors.” The Appellant’s recovery would depend on changes in her psychosocial and environmental problems.^{Footnote 15}

[29] In her June 2021 CPP medical report, Dr. Tan-Jarvis stated that because of her depression, the Appellant had trouble concentrating. She was unable to perform her work duties.^{Footnote 16} The Appellant’s score on a standard test (19/21) showed severe anxiety. Her score on the PHQ-7 showed that her depression was severe.^{Footnote 17}

[30] Dr. Tan-Jarvis’ office notes sometimes detail her discussions with the Appellant. For example, in September 2021, Dr. Tan-Jarvis reported that the Appellant was in an on-going legal battle with her ex-partner. He did not want their son to go to Montessori. It was stressful for the Appellant even to read the legal letters. She got headaches twice a day from stress. Her eating was erratic. Dr. Tan-Jarvis stated that stress was causing anxiety, depression, headaches, sleep problems, and indigestion.^{Footnote 18}

[31] In May 2023, Dr. Susan Walker Kennedy, psychologist, stated that the Appellant’s diagnosis was generalized anxiety disorder. Her ongoing legal struggles led to a high level of anxiety. She continued to have difficulty with sleep. She was unable to relax. She felt worried about the ongoing issues with her ex-partner.^{Footnote 19}

My findings

[32] The Appellant’s main health conditions are anxiety and depression. Ongoing incidents with J. C. trigger her metal health symptoms constantly. They disrupt her sleep, concentration, and enjoyment of life. I find that they interfere with her ability to earn a living.

The Appellant has generally followed medical advice

[33] The Appellant must provide medical evidence of a disabling condition.^{Footnote 20}

[34] The Appellant began seeing a psychologist, Dr. Kennedy, in October 2019.^{Footnote 21} She testified that she is still seeing Dr. Kennedy. The psychologist helps her with breathing techniques and gives her other advice on managing stress and panic attacks.

[35] In September 2020, Dr. Tan-Jarvis reported that the Appellant was following the recommended treatment program.^{Footnote 22}

[36] In April 2021, the Appellant was taking lorazepam for anxiety, pantoprazole for stomach problems, and Tylenol for headache and tension.^{Footnote 23} The Appellant takes lorazepam before bed a few days a week to make her drowsy. At the hearing, she testified that she was also taking Gravol for nausea and a medication for allergies (Rupall).

[37] In May 2023, Dr. Tan-Jarvis estimated the Appellant’s Global Assessment of Functioning (GAF) score at 55 (moderate symptoms). She was unable to take medications because of their side effects. She took short-acting medications as needed.^{Footnote 24}

[38] The Appellant testified that she has taken massage therapy since January 2020 for the tension in her shoulders.^{Footnote 25}

[39] I find that the Appellant has made reasonable efforts to comply with recommended treatments.

The Appellant cannot realistically earn a living because of her disability

[40] In deciding whether the Appellant’s condition was severe, I must take a “real world” approach. This means I must consider factors such as her age, level of education, language abilities, and past work and life experience.^{Footnote 26} I must think about how these matters realistically affected the Appellant’s ability to earn a living.

[41] The Appellant is English-speaking and has a high school education. She has a college diploma in business administration. These factors would all be advantages in looking for work. She was 44 years old at the hearing date. This is more than 20 years before the usual retirement age. Her age would not have prevented her from finding employment.

[42] The evidence shows that the Appellant is unable to do her regular job. That work involved invoicing for several East Coast branches of the firm. She also worked reception, did filing, worked on a computer, and calculated freight.^{Footnote 27} The work required her to focus and concentrate.^{Footnote 28} She stated that because of her health conditions, she was no longer able to pay attention to her work. Her only other job was as a sales associate at Walmart for nine years. She would be unable to do physical work because of the condition of her feet and ankles.

[43] In June 2021, Dr. Tan-Jarvis stated that she recommended that the Appellant quit working in January 2020.

[44] Dr. Tan-Jarvis stated in June 2021 that she expected the Appellant to be able to return to her usual job in a year or two. However, this has not happened. In September 2021, Dr. Tan-Jarvis and Dr. Kennedy stated that the Appellant was unable to sustain gainful employment.^{Footnote 29}

[45] In May 2023, both Dr. Tan-Jarvis and Dr. Kennedy stated that the Appellant was unable to work.^{Footnote 30}

[46] I find that the Appellant was unable to earn a living at any occupation by the hearing date. She is therefore excused from the requirement to show that she tried to find alternate work and was unable to hold onto a different job because of her disability.^{Footnote 31}

[47] I find that it is more likely than not that the Appellant’s disability was severe by the hearing date.

Was the Appellant’s disability prolonged?

[48] The Appellant’s disability was prolonged. She has suffered from anxiety and depression since at least January 2019. Her family doctor and her psychologist both state that she is still unable to work.

[49] The Appellant’s disability is long continued and of indefinite duration. I therefore find that it is prolonged.

When payments start

[50] The Appellant had a severe and prolonged disability in January 2020, when she stopped working.

[51] There is a four-month waiting period before payments start.^{Footnote 32} This means that payments start as of May 2020.

Conclusion

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

[53] This means the appeal is allowed.