Donna K. Sharlofsky v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNA K. SHARLOFSKY, DOCKET NUMBER

Appellant, PH-844E-13-0463-I-1

v.

OFFICE OF PERSONNEL DATE: August 15, 2014

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donna K. Sharlofsky, Summerton, South Carolina, pro se.

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 Office of Personnel Management (OPM) has filed a petition for review

of the initial decision, which reversed its reconsideration decision that denied the

appellant’s application for Federal Employees’ Retirement System (FERS)

disability retirement benefits. Generally, we grant petitions such as this one only

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In May 2012, the appellant filed a disability retirement application under

FERS based on rheumatoid arthritis and back pain. See Initial Appeal File (IAF),

Tab 5 at 26-27. OPM denied her application in initial and reconsideration

decisions. See id. at 4-6 (reconsideration decision), 20-23 (initial decision). The

appellant filed a Board appeal, and a hearing was held. IAF, Tab 1; Hearing CD.

The administrative judge issued an initial decision, in which she reversed OPM’s

reconsideration decision and found that the appellant was entitled to disability

retirement benefits. IAF, Tab 16, Initial Decision (ID). OPM filed a petition for

review, and the appellant filed a brief response. Petition for Review (PFR) File,

Tabs 1, 3. In its petition, OPM asserts that: (1) there is a dearth of medical

evidence to support the appellant’s subjective complaints of disability prior to her

resignation; (2) the administrative judge ignored certain conflicting evidence and

misapplied the law in considering the appellant’s post-separation medical

3

evidence; and (3) the issues of accommodation and reassignment are moot

because the appellant failed to establish a disabling medical condition. We have

considered OPM’s arguments on review, but none warrant a different outcome.

¶3 On review, OPM asserts that there is “no evidence showing any

disability prior to [the appellant’s] resignation,” and it contends that the

administrative judge’s analysis was inconsistent with Newkirk v. Office of

Personnel Management, 101 M.S.P.R. 667 (2006), Caponetto v. Office of

Personnel Management, 12 M.S.P.R. 330 (1982), and Shanoff v. Office of

Personnel Management, 103 M.S.P.R. 549 (2006), because there was no

competent medical evidence to support and corroborate her claim of disability.

PFR File, Tab 1 at 5 (emphasis in original). OPM acknowledges, however, that

the appellant produced a May 17, 2012 medical report, which predated her

resignation. Id. This report stated, among other things, that: (1) the appellant

was a patient since 2009; (2) she was diagnosed with rheumatoid arthritis in

2002; (3) she has pain in her ankle, back, knee, shoulder, and arm; (4) her range

of motion decreased due to chronic pain; (5) she was in a motor bike accident in

2011, which resulted in two broken vertebrae and a fractured right forearm; (6)

she was given anti-inflammatories and pain medications but they did not help her

pain; (7) she cannot sit or stand for longer than 45 minutes or “type in a

continuous manner due to pain”; and (8) she was not recommended to work

“[g]iven the progression of the arthritis.” IAF, Tab 5 at 38-39. Moreover, the

appellant testified, credibly and without contradiction, regarding the progression

of her rheumatoid arthritis and back condition, her pain and physical limitations,

her inability to perform virtually any of her Supply Technician duties, and her

attempts to obtain additional medical records from her doctors to support her

disability retirement application. Hearing CD.

¶4 We find that the May 17, 2012 report constitutes competent medical

evidence to support the appellant’s application for disability retirement. See

Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed.

4

Cir. 2007) (“[A]n applicant may prevail based on medical evidence that . . .

consists of a medical professional’s conclusive diagnosis, even if based primarily

on his/her analysis of the applicant’s own descriptions of symptoms and other

indicia of disability.”). Importantly, the Board has held that medical conclusions

based on a long familiarity with a patient are of greater weight than those based

on a brief association. Tan-Gatue v. Office of Personnel

Management, 90 M.S.P.R. 116, ¶ 11 (2001), aff’d, 52 F. App’x 511 (Fed. Cir.

2002). The May 17, 2012 medical report was written by a doctor who had seen

the appellant for 3 years, and the appellant testified that she saw him almost

monthly prior to her resignation. See IAF, Tab 5 at 38-39; Hearing CD.

¶5 OPM also claims that the initial decision was inconsistent with Rapp v.

Office of Personnel Management, 108 M.S.P.R. 674 (2008), which required the

Board to consider contrary or conflicting medical evidence. See PFR File, Tab 1

at 5-6. In this regard, OPM notes that the appellant certified that she was unable

to walk or stand due to her medical condition, but the June 4, 2013 medical report

states that the appellant is able to “walk and hike without any complaints,” her

gait is “normal,” and the doctor advised the appellant to “Turn Your Walk Into a

Workout.” Id. at 6 (emphasis in original). Compare IAF, Tab 5 at 26 (the

appellant’s application), with IAF, Tab 12 (the June 4, 2013 report).

¶6 The administrative judge did not note these portions of the June 4, 2013

report in the initial decision. However, the administrative judge’s failure to

mention all of the evidence of record does not mean that she did not consider it in

reaching her decision. Marques v. Department of Health & Human

Services, 22 M.S.P.R. 129, 132 (1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985)

(Table). We have considered these alleged inconsistencies, but they do not

warrant a different outcome. For instance, the appellant does not state in her

application for disability retirement that she was unable to walk or stand at all;

rather, she asserted that she has “difficulty walking” and she was “unable to sit or

stand for long periods of time.” IAF, Tab 5 at 26.

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¶7 The June 4, 2013 report states that the appellant “[e]xercises

regularly-walks three times a day with dog,” “can hike without [shortness of

breath],” and, in the “Pt Education” section, states “Turn Your Walk Into a

Workout.” See IAF, Tab 12. However, the appellant testified that the “walk”

with the dog involved going into her backyard for 10 minutes, and she stated that

her backyard is a flat surface. Hearing CD. She also testified that she did not tell

the doctor that she participates in hiking; rather, she stated that, while she used to

exercise and hike, she was no longer able to exercise at all, and she explained that

even physical therapy was “too hard on [her] hands” and it “upped” her blood

pressure. Id. In her response to the petition for review, the appellant states that

the reference to “Turn Your Walk Into a Workout” was a flyer that the doctor

gave to every patient. See PFR File, Tab 3. Finally, we find that the statement

that the appellant’s gait is “normal” is not inconsistent with her testimony or

medical evidence supporting her claim of disability retirement. For these reasons,

we are not persuaded that this evidence calls into question the appellant’s

veracity.

¶8 OPM also contends that the administrative judge improperly considered

post-separation evidence, i.e., the June 4, 2013 medical report. See PFR File, Tab

1 at 6-7 (citing Reilly v. Office of Personnel Management, 571 F.3d 1372,

1381-83 (Fed. Cir. 2009)). OPM asserts that this medical information is

probative “only if” it links the condition to the time while the employee was

covered under FERS, but the June 4, 2013 report does not satisfy this criteria: it

is over 1 year past her resignation date, it discusses conditions that are not the

subject of her disability retirement application, and it discusses her condition

after she resigned, not when she was in a position covered under FERS. Id.

(emphasis in original).

¶9 In Reilly, our reviewing court held that the Board erred in adopting a

categorical rule barring consideration of post-retirement evidence. Reilly, 571

F.3d at 1382. Rather, the court noted that, “[w]here proximity in time, lay

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testimony, or some other evidence provides the requisite link to the relevant

period the subsequent medical evidence can be very probative of a prior

disability.” Id. Here, we find that the June 4, 2013 report has probative value

because it corroborated the appellant’s testimony regarding the pain and other

disabling symptoms stemming from her rheumatoid arthritis that she was

experiencing at the time of her resignation in May 2012. 2

¶10 Finally, we are not persuaded by OPM’s contention that the accommodation

and reassignment issues are moot because the appellant did not prove that she had

a disabling condition. PFR File, Tab 1 at 7-8. The administrative judge carefully

considered the record evidence and concluded that the appellant met her burden in

this regard. See ID at 8-12. We discern no reason to disturb her findings. See

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to

disturb the administrative judge’s findings where the administrative judge

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶11 We have considered OPM’s assertion that the Supervisor Statement

contradicts the Agency Certification of Reassignment and Accommodation

Efforts, and that, pursuant to Sucic v. Office of Personnel

Management, 64 M.S.P.R. 281 (1994), the appellant’s supervisor’s statement

should be entitled to more weight. PFR File, Tab 1 at 7-8. Compare IAF, Tab 5

at 29-31 (the Supervisor Statement states that there was no record of a request

from the appellant or document that a special accommodation was needed or that

the appellant has a disability), with id. at 35-36 (the agency certified that “the

medical evidence presented to the agency shows that accommodation is not

possible due to severity of medical condition and the physical requirements of the

2

We only consider the June 4, 2013 medical report as it relates to the conditions that

the appellant identified in her disability retirement application, i.e., rheumatoid arthritis

and back pain.

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position” and that reassignment is not possible). The appellant, in her testimony,

admitted that she did not recall if she made any written accommodation requests

to her supervisor, but she testified without contradiction that the agency provided

her with various accommodations, in the form of no travel, a special keyboard,

and a foot stool. Hearing CD. She also testified that her supervisor was well

aware of her condition, expressed concern to her about the toll that the condition

was taking on her, and had even recommended that she stop working. Id.

¶12 In Sucic, 64 M.S.P.R. at 284-87, the Board determined that the testimony of

the individuals who worked with the appellant “was entitled to greater weight

than [the] statement in the Agency Certification that the Postal Service could not

accommodate the appellant.” In the initial decision, the administrative judge

similarly determined that the Supervisor Statement was entitled to less weight in

light of other evidence in the record, including the appellant’s own testimony.

See ID at 11-14. Although the administrative judge did not cite to Hillen v.

Department of the Army, 35 M.S.P.R. 453 (1987), we note that the contradiction

of one version of events by other evidence is a proper factor for making a

credibility determination. See Hillen, 35 M.S.P.R. at 458. We therefore discern

no error with the administrative judge’s decision in this regard.

ORDER

¶13 Based on the above reasons, we ORDER OPM to grant the appellant’s

application for disability retirement. OPM must complete this action no later than

20 days after the date of this decision.

¶14 We also ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board's Order and of the actions it took to

carry out the Board's Order. We ORDER the appellant to provide all necessary

information OPM requests to help it carry out the Board's Order. The appellant,

if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).

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¶15 No later than 30 days after OPM tells the appellant it has fully carried out the

Board's Order, the appellant may file a petition for enforcement with the office

that issued the initial decision on this appeal if the appellant believes that OPM

did not fully carry out the Board's Order. The petition should contain specific

reasons why the appellant believes OPM has not fully carried out the Board's

Order, and should include the dates and results of any communications with

OPM. See 5 C.F.R. § 1201.182(a).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

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

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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

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.