The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MADELAINE E. SATTLEFIELD, DOCKET NUMBER
Appellant, CH-844E-13-4542-I-1
v.
OFFICE OF PERSONNEL DATE: October 7, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Madelaine E. Sattlefield, East Saint Louis, Illinois, pro se.
Matthew D. MacIsaac, 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) final decision denying her
application for disability retirement. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 Federal Employees’ Retirement System
(FERS)-covered Mail Handler who worked for the Postal Service from
September 9, 2000, until the agency removed her on June 10, 2011, for
unacceptable attendance. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 6, Tab 6
at 22, 54-56. On or about April 12, 2012, the appellant filed an application for
disability retirement based on the following conditions: (1) a rotator cuff injury;
(2) plantar fasciitis; (3) anxiety attacks; and (4) a punctured lung. IAF, Tab 6
at 20. OPM issued a final decision denying the application, and the appellant
filed a Board appeal. IAF, Tab 1, Tab 6 at 6-9. The appellant initially requested
a hearing, but later withdrew her request. IAF, Tab 1 at 1, Tab 10 at 1.
¶3 After receiving the parties’ evidence and argument, the administrative judge
issued an initial decision affirming OPM’s final decision. IAF, Tab 13, Initial
Decision (ID) at 2, 7. She found that, although appellant has several medical
conditions, the appellant failed to prove that any of these conditions are disabling.
ID at 6.
3
¶4 The appellant has filed a petition for review, arguing that the administrative
judge weighed the evidence incorrectly, that she received a scheduled award for
her rotator cuff injury, and that she is currently complying with her prescribed
medication and physical therapy regimens. Petition for Review (PFR) File, Tab 1
at 4-5. The appellant asserts that her attorney advised her to withdraw her
hearing request. Id. at 5. She has filed various documents with her petition for
review pertaining to her workers’ compensation claim and current medical
regimen. PFR File, Tab 3. OPM has not filed a response.
¶5 As an initial matter, we have not considered the evidence that the appellant
filed for the first time on review related to her workers’ compensation claim.
PFR File, Tab 3 at 2-11. All of this evidence predates the initial decision and, in
fact, predates the appellant’s disability retirement application. She has not
explained why she was unable to submit this evidence for the record below
despite her due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980) (under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence).
The evidence of the appellant’s current medical regimen, however, postdates the
initial decision. PFR File, Tab 3 at 12-13. We have considered that evidence to
the extent that it bears on the issue of whether the appellant’s claimed medical
conditions were disabling during the relevant time periods, but we find that it is
immaterial to the outcome of the appeal. See id.
¶6 An employee bears the burden of proving by preponderant evidence her
entitlement to disability retirement. Snow v. Office of Personnel Management,
74 M.S.P.R. 269, 273 (1997); 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 18 months of creditable
civilian service; (2) the individual must, while employed in a position subject to
FERS, have become disabled because of a medical condition resulting in a
4
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
application for disability retirement is filed; (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. 5 U.S.C. § 8451; Henderson v. Office of Personnel Management,
109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 844.103(a).
¶7 There is no dispute that the appellant has satisfied the service requirements
for disability retirement under FERS and that she has not declined any reasonable
offer of reassignment. Therefore, the only issues in this appeal relate to the
appellant’s medical conditions and their effects on her ability to perform in her
former position, i.e., eligibility criteria (2), (3), and (4).
¶8 The record amply demonstrates that the appellant had an attendance
deficiency. IAF, Tab 6 at 21-23, 55. Indeed, this was the reason for her removal.
Id. at 22. However, we agree with the administrative judge that the evidence is
insufficient to show that the appellant’s rotator cuff injury caused her attendance
deficiency. ID at 5. The appellant incurred this injury on August 27, 2009. IAF,
Tab 4 at 7. She states that she underwent surgery for it in February 2010, and she
was apparently on limited duty for a period of time as a consequence of this
injury. Id. at 7-8; IAF, Tab 6 at 44, Tab 9 at 3, Tab 11 at 3. The appellant states
that she continues to have severe problems with her shoulder, and an undated
statement from a coworker similarly states that the appellant is in constant pain
from this injury. IAF, Tab 4 at 20, Tab 11 at 3-5. However, the appellant has not
explained why the agency returned her to full duty on May 24, 2010, if she had
not recovered sufficiently from her compensable injury to resume the full duties
of her Mail Handler position. IAF, Tab 6 at 44. The appellant’s first-hand
account of pain and inability to work due to her shoulder injury is certainly
5
probative of whether her condition is disabling. IAF, Tab 11 at 3-5; see
Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1040-44
(Fed. Cir. 2007). However, there is no actual medical evidence in the record of
this condition or the surgery apart from an October 31, 2013 note from an office
visit, stating that the appellant is still experiencing “pain/stiffness” from the
injury and is taking an unspecified pain medication for it. IAF, Tab 9 at 3.
Under the circumstances, we agree with the administrative judge that this
evidence is insufficient to show that the appellant’s rotator cuff injury remained
disabling after the agency returned her to full duty in 2010.
¶9 There is slightly more medical evidence regarding the appellant’s plantar
fasciitis. The appellant submitted two notes from a podiatrist, dated April 28,
2011, and May 5, 2011, diagnosing her with plantar fasciitis. 2 IAF, Tab 6 at 30,
32. Such a condition would appear to be particularly problematic for a Mail
Handler like the appellant, whose job involves prolonged standing and walking
while handling heavy items. Id. at 43; IAF, Tab 11 at 3. Nevertheless, even if
the appellant’s plantar fasciitis contributed to her attendance deficiency, we find
insufficient evidence to conclude that this condition was expected to continue for
at least 1 year after her April 12, 2012 disability retirement application. The
podiatrist fitted the appellant with orthotics, prescribed stretching exercises, and
noted progress in the appellant’s plantar fasciitis, with the goal of rendering the
condition asymptomatic. IAF, Tab 6 at 31-32. There is no medical
documentation of this condition after the appellant’s removal, and, notably, there
is no mention of plantar fasciitis in the October 31, 2013 comprehensive medical
2
The podiatrist also diagnosed the appellant with unspecified fasciitis, a heal spur,
stress fracture syndrome, and extensor tendonitis. IAF, Tab 6 at 30, 32. However, the
appellant did not claim these conditions as disabling in her original disability retirement
application or in her reconsideration request. The Board will not consider evidence
relating to medical conditions that were never the subject of an application to OPM for
disability retirement. Dunn v. Office of Personnel Management, 60 M.S.P.R. 426, 433
(1994).
6
assessment that the appellant obtained in support of her disability retirement
claim. IAF, Tab 9 at 3.
¶10 As for the appellant’s anxiety attacks, the record contains four notes from a
psychiatrist, dated June 30, 2008, July 14, 2008, April 22, 2009, and July 14,
2010, all of which confirm that the appellant suffered from anxiety problems
during that time. IAF, Tab 6 at 33-37. The psychiatrist diagnosed the appellant
with panic disorder and a “likely” general anxiety disorder. 3 Id. He prescribed
her Zoloft and Klonopin to manage her symptoms. Id. at 33. The psychiatrist’s
description of the appellant’s anxiety attacks is consistent with the appellant’s
first-hand account and describes them as occurring about once a day—usually at
night—and consisting of chest pain, shortness of breath, and intense anxiety and
sweats, lasting about 10 to 15 minutes and interfering with her sleep. 4 IAF,
Tab 6 at 33-34, 36, Tab 11 at 5. There is no indication, however, in either the
psychiatrist’s reports or in the appellant’s subjective first-hand account of her
condition that it interfered in any way with her working. Nor do we find any
apparent connection between the appellant’s ability to work and these discreet
episodes that occur mostly at night. See Anderson v. Office of Personnel
Management, 96 M.S.P.R. 299, ¶ 20 (2004) (anxiety is not a condition that is
obviously incapacitating; the Board will require further information to connect an
appellant’s anxiety with her inability to perform her job duties), aff’d, 120 F.
App’x 320 (Fed. Cir. 2005). Furthermore, the psychiatrist’s notes indicate some
improvement in the appellant’s symptoms even with her partial compliance with
the psychiatrist’s treatment plan. IAF, Tab 6 at 34-35. There is no medical
3
The psychiatrist also diagnosed the appellant with major depression, and the appellant
gives a first-hand account of this condition. IAF, Tab 6 at 34-35, 37, Tab 11 at 4, 6.
However, the appellant did not raise this as a disabling condition before OPM, and
therefore we will not consider it. See Dunn, 60 M.S.P.R. at 433.
4
The psychiatrist described these episodes as “panic attacks” rather than “anxiety
attacks,” but it is apparent that this is the condition to which the appellant is referring in
her disability retirement application. IAF, Tab 6 at 20, 36.
7
evidence of this condition after July 14, 2010, and we find insufficient evidence
to conclude that it could be expected to persist for 1 year or more after the
June 12, 2012 disability retirement application date, especially if the appellant
fully complied with her psychiatrist’s instructions. Cf. Smedley v. Office of
Personnel Management, 108 M.S.P.R. 31, ¶ 23 (2008) (voluntary refusal to
accept facially-reasonable treatment will bar entitlement to disability retirement
benefits). There is no mention of this condition in the October 31, 2013 medical
evaluation. IAF, Tab 9 at 3.
¶11 We also find that the appellant’s punctured lung was not the reason for her
attendance deficiency because she incurred that injury on June 10, 2011—3 days
after the agency issued its removal decision. 5 IAF, Tab 6 at 22, 24-29.
Furthermore, there is no evidence that the injury continued to be disabling until
April 12, 2013—1 year past the date of the appellant’s disability retirement
application. In fact, this seems unlikely based on the June 20, 2011 hospital
discharge summary, which is the most recent medical evidence of this condition
and offers a favorable prognosis. Id. at 25.
¶12 In sum, we find that the sparse medical evidence and the appellant’s
first-hand account of her medical conditions are insufficient to support a finding
that any of these four conditions, alone or together, disabled the appellant from
performing in her Mail Handler position both during her employment and for
1 year after her disability retirement application. The evidence is variously
insufficient to show a connection between these conditions and the appellant’s
5
There is no first-hand documentation of the appellant’s removal in the record, e.g., the
proposal letter, the decision letter, or the Postal Service Form 50. It is therefore unclear
whether the appellant’s June 10, 2011 injury occurred before her June 10, 2011 removal
became effective. See generally Honea v. Department of Homeland Security,
118 M.S.P.R. 282, ¶¶ 9-10 & n.3 (2012) (separations generally occur at the end of the
day (midnight) unless the agency indicates that the separation will be effective at an
earlier time), aff’d, 524 F. App’x 623 (Fed. Cir. 2013). For purposes of this decision,
we assume that this injury occurred prior to the appellant’s separation. See generally
5 C.F.R. § 844.103(a)(2) (to be entitled to disability retirement, an individual’s
disability must have occurred while in service).
8
ability to work or that the conditions could be expected to persist for 1 year or
more after she applied for disability retirement. We also note that,
notwithstanding her supervisor’s statement, the appellant’s attendance deficiency
appears to have begun well before the claimed onset of her disability in 2009.
IAF, Tab 6 at 20-22. The appellant’s individual retirement record shows that she
incurred substantial amounts of leave without pay beginning in 2003. Id. at 55.
This makes it all the more difficult to attribute the appellant’s attendance
deficiency from 2009 onward solely or even primarily to her claimed disabling
conditions. For these reasons, contrary to the appellant’s arguments on review,
we agree with the administrative judge’s assessment of the evidence. See PFR
File, Tab 1 at 4; see also ID at 3-7.
¶13 Regarding the appellant’s withdrawal of her hearing request, although the
appellant may now regret that decision, she is ultimately responsible for the
prosecution of her own appeal and cannot escape the consequences of her
decision to rely on the advice of her attorney. 6 See Fairchilde v. Department of
the Interior, 36 M.S.P.R. 586, 588 (1988). In any event, the appellant has not
explained how a hearing in this appeal might have affected the outcome.
Likewise, we find it immaterial that the appellant’s shoulder injury was ruled
compensable and that she is currently complying with her doctor’s instructions.
PFR File, Tab 1 at 5.
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:
6
The appellant has acted pro se throughout the course of her Board appeal. The nature
and source of this legal advice is not clear.
9
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
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
10
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.