The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. RYDER, DOCKET NUMBER
Appellant, PH-844E-13-1894-I-1
v.
OFFICE OF PERSONNEL DATE: September 9, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cornelius J. P. Sullivan, Esquire, Mattapan, Massachusetts, for the
appellant.
Thomas L. Styer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) reconsideration decision
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
denying the appellant’s application for disability retirement under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant was a City Letter Carrier with the United States Postal
Service. Initial Appeal File (IAF), Tab 4 at 21. He resigned from employment on
June 22, 2011, id. at 22, and applied to OPM for FERS disability retirement
annuity benefits, id. at 19-28, 174-79. In his application, he based his request for
benefits on the following conditions: bipolar disorder, chronic post-traumatic
stress disorder (PTSD), depression, anxiety, work-related stress, mood lability, 2
2
Mood lability is a term used in the field of psychology to refer to a poorly-modulated
emotional response that falls outside the conventionally accepted range and may be
marked by a great fluctuations in mood. See Theodore P. Beauchaine et al., Polyvagal
Theory and Developmental Psychopathology: Emotion Dysregulation and Conduct
Problems from Preschool to Adolescence, 74 B IOLOGICAL P SYCHOLOGY 2, 174-84
(2007).
3
colitis, 3 hypertension, IgA nephropathy, 4 tinnitus, 5 hypothyroidism, kidney cysts,
and cardiac arrest. Id. at 19. OPM issued an initial decision denying the
appellant’s application for disability retirement benefits. Id. at 13-17. The
appellant requested reconsideration and OPM again denied his request for
disability retirement benefits. Id. at 4-8. The appellant filed an appeal of OPM’s
reconsideration decision. IAF, Tab 1. In an initial decision, the administrative
judge affirmed OPM’s reconsideration decision. IAF, Tab 17, Initial Decision
(ID) at 1, 14. The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶3 An individual bears the burden of proving by preponderant evidence his
entitlement to disability retirement. Henderson v. Office of Personnel
Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(a)(2). To qualify
for disability retirement benefits under FERS, an individual must meet the
following requirements: (1) the individual must have completed at least
18 months of creditable civilian service; (2) the individual, while employed in a
position subject to FERS, must have become disabled because of a medical
condition, resulting in a deficiency in performance, conduct, or attendance, or if
there is no such deficiency, the disabling medical condition must be incompatible
with either useful and efficient service or retention in the position;
(3) the disabling medical condition must be expected to continue for at least
1 year from the date the disability retirement benefits application is filed;
3
Colitis is inflammation of the large intestine. George Longstreth, Colitis,
M EDLINE P LUS (Oct. 13, 2013), http://www.nlm.nih.gov/medlineplus/ency/article/
001125.htm.
4
IgA nephropathy is a kidney disease that occurs when an antibody called
immunoglobulin A (IgA) lodges in the kidneys and results in local inflammation. IgA
Nephropathy, M AYO C LINIC (Apr. 19, 2013), http://www.mayoclinic.org/diseases-
conditions/iga-nephropathy/basics/definition/CON-20034366.
5
Tinnitus is noise or ringing in the ears. Tinnitus, M AYO C LINIC (Feb. 5, 2013),
http://www.mayoclinic.org/diseases-conditions/tinnitus/basics/definition/con-20021487.
4
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) the individual must not have declined a reasonable offer
of reassignment to a vacant position. Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R.
§ 844.103(a); see 5 U.S.C. § 8451(a).
¶4 The Board has held that there are two ways to meet the statutory
requirement that the individual “be unable, because of disease or injury, to render
useful and efficient service in the employee’s position”; namely, by showing that
the medical condition: (1) caused a deficiency in performance, attendance, or
conduct; or (2) is incompatible with useful and efficient service or retention in
the position. Henderson v. Office of Personnel Management, 117 M.S.P.R. 313,
¶ 16 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see also
Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012) (finding
that the standard is the same under both the Civil Service Retirement System and
FERS). Under the first method, an individual can establish entitlement by
showing that the medical condition affects his ability to perform specific work
requirements or prevented him from being regular in attendance or caused him to
act inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the second
method, an individual can establish entitlement by showing that the medical
condition is inconsistent with working in general, working in a particular line of
work, or working in a particular type of setting. Id.
¶5 A determination of disability is based on objective clinical findings,
diagnoses and medical opinions, subjective evidence of pain and disability, and
evidence showing the effect of the individual’s condition on his ability to perform
the duties of his position. Id., ¶ 19. The ultimate question, based on all relevant
evidence, is: Do the individual’s medical impairments preclude him from
rendering useful and efficient service in his position? Id., ¶ 20. This question
must be answered in the affirmative if the totality of the evidence makes that
conclusion more likely to be true than not true. Id.
5
¶6 Here, the administrative judge properly considered the totality of the
evidence and concluded that the appellant failed to prove by a preponderance of
the evidence that his medical condition prevented him from rendering useful and
efficient service in his former position.
¶7 In his petition for review, the appellant argues that the administrative judge
erred by substituting his opinion for the agency’s opinion as expressed in the
Supervisor’s Statement and Agency Certification of Reassignment and
Accommodation Efforts. PFR File, Tab 1 at 2; see IAF, Tab 4 at 21-26 (Standard
Forms 3112B and 3112D). The appellant claims that the agency “certified that
the appellant could not provide [useful and efficient] service.” PFR File, Tab 1
at 2. We disagree. The agency did not certify that the appellant could not
provide useful and efficient service. See IAF, Tab 4 at 21-26. Instead, the
appellant’s supervisor stated in the Supervisor’s Statement his opinion that the
appellant has had unacceptable conduct since October 2006. See id. at 21-23.
The Supervisor’s Statement does not prove that the appellant had a medical
condition that caused his unacceptable conduct, nor does it suggest that the
appellant’s supervisor believed that the appellant’s unacceptable conduct was
caused by a medical condition. Moreover, the appellant was diagnosed with
bipolar disorder and PTSD on April 26, 2011, more than 5 years after
October 2006. Id. at 84. The diagnosing psychiatrist also noted that the appellant
never needed treatment for his bipolar disorder or PTSD until his diagnosis. Id.
at 74, 76. Therefore, the Supervisor’s Statement concerning the appellant’s
unacceptable conduct is not dispositive and the administrative judge did not
improperly substitute his opinion for the agency’s opinion. As a result, we agree
with the administrative judge that the appellant failed to meet the statutory
requirement of 5 U.S.C. § 8451(a)(1)(B) to show that his medical condition
caused a deficiency in performance, attendance, or conduct. See
Henderson, 117 M.S.P.R. 313, ¶ 16.
6
¶8 The appellant also claims on review that the administrative judge
erroneously discounted the appellant’s subjective evidence. PFR File, Tab 1 at 2.
Contrary to the appellant’s claim, the administrative judge explicitly expressed
his disagreement with OPM’s insistence that a psychological disability must be
supported by objective evidence. ID at 12. Even though the medical opinions of
psychiatrists are based primarily on the appellant’s own descriptions of symptoms
and indicia of disability, OPM still must consider such medical evidence. See
Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed.
Cir. 2007). The administrative judge properly considered the appellant’s affidavit
and description of his symptoms as told to health care providers, ID at 3, 6-9, in
concluding that the appellant failed to prove that his medical condition was
disabling or incompatible with useful and efficient service, ID at 12-13. Thus,
the administrative judge properly considered all pertinent evidence in the record,
including the appellant’s subjective evidence of pain and disability.
¶9 Next, the appellant argues that the administrative judge should not have
considered the improvement of the appellant’s mental health to mean that he has
fully recovered. PFR File, Tab 1 at 2-3. The administrative judge did not state
that the appellant was fully recovered and recognized that the appellant’s
treatment is ongoing. See ID at 13. However, the administrative judge properly
considered the extent to which the appellant’s disability could or could not be
controlled. Id.; see Smedley v. Office of Personnel Management, 108 M.S.P.R.
31, ¶ 23 (2008). Thus, the administrative judge properly considered the
appellant’s mental health improvement with therapy and medicine to determine
whether the appellant proved an inability to provide useful and efficient service.
¶10 Further, the appellant objects to the administrative judge’s consideration of
the appellant’s ability to work for his family business. PFR File, Tab 1 at 2. The
appellant distinguishes his ability to work for his family business from his
inability to work for the agency, given the less-stressful work environment and
accommodating nature of his family business. Id. We recognize that the
7
appellant’s work for his family business might differ from his work at the agency.
See, e.g., Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶¶ 15-16
(2009) (the appellant’s position after her resignation entailed very different
responsibilities from her former agency position). In fact, the administrative
judge gave adequate consideration to the appellant’s testimony on his work for
his family business. ID at 3-4. However, the administrative judge properly
considered evidence concerning the appellant’s subsequent work history as
support for the conclusion that the appellant’s medical conditions were amenable
to control. ID at 13. Thus, the administrative judge properly considered the
appellant’s ability to work for his family business in concluding that the appellant
did not show an inability to provide useful and efficient service in his former
government position.
¶11 The appellant, moreover, restates that he was awarded social security
disability benefits by the Social Security Administration (SSA). PFR File, Tab 1
at 2. To the extent that the appellant is claiming that the administrative judge did
not properly consider the SSA award, he is mistaken. The administrative judge
explicitly addressed the appellant’s receipt of SSA benefits in the initial decision.
ID at 13-14. Although the Board must consider SSA decisions in adjudicating
disability retirement cases, it is not bound by such decisions. Givens v. Office of
Personnel Management, 95 M.S.P.R. 120, ¶ 9 (2003). Additionally, where there
is no indication as to the basis for the SSA determination, the determination is not
a significant factor in deciding an OPM disability retirement appeal. See
Confer, 111 M.S.P.R. 419, ¶ 6. Because the basis for the appellant’s SSA award
in this appeal was unclear, see ID at 13-14, the administrative judge properly
considered the SSA award to be of little probative value.
¶12 Although the appellant asserts on review that the agency could not provide
him with reasonable accommodations, PFR File, Tab 1 at 2, we need not address
this claim because he failed to establish that he was unable, because of disease or
injury, to render useful and efficient service in his former position, see 5 U.S.C.
8
§ 8451(a)(1)(B); Guthrie v. Office of Personnel Management, 105 M.S.P.R. 530,
¶ 13 (2007) (arguments about accommodation need not be considered when the
appellant did not demonstrate that she had a disabling condition that would
require any accommodation). Likewise, we need not address whether the
appellant established the other eligibility requirements for disability retirement,
i.e., whether the disabling medical condition was expected to continue for at least
1 year from the date the disability retirement benefits application was filed, and
whether the appellant declined an offer of reassignment to a vacant position.
See 5 C.F.R. § 844.103(a).
¶13 In conclusion, we find that the appellant has not provided a reason to
disturb the administrative judge’s decision affirming OPM’s denial of the
appellant’s application for disability retirement.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
9
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.