The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA A. WALL, DOCKET NUMBER
Appellant, SF-844E-14-0787-I-1
v.
OFFICE OF PERSONNEL DATE: April 10, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Charline H. Lewis, Los Angeles, California, for the appellant.
Delores A. Saunders, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, 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’s) reconsideration
decision. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 In a reconsideration decision, OPM denied the appellant’s application for
disability retirement benefits. Initial Appeal File (IAF), Tab 4 at 4. OPM found
that the appellant failed to submit adequate objective medical evidence to support
her claim that she was disabled for the position of Full Time Regular Carrier due
to heart disease. 2 Id.
¶3 On appeal, 3 the administrative judge reviewed the statements of the
appellant’s treating physicians, the statements of the physician to whom OPM had
sent the appellant’s application to be reviewed, and the appellant’s own
statements concerning her condition. IAF, Tab 15, Initial Decision (ID) at 5-10.
He also reviewed the Social Security Administration’s (SSA’s) decision
2
The appellant’s former supervisor with the U.S. Postal Service indicated that the
appellant was less than fully successful due to excessive absences and the employing
agency issued the appellant a notice of proposed removal. IAF, Tab 4 at 32. The
agency held the proposed removal in abeyance for 60 days to allow the appellant to
apply for disability retirement. IAF, Tab 1. The agency effected the appellant’s
removal on September 4, 2014. IAF, Tab 11, Exhib it 3.
3
Initially, the appellant requested a hearing. IAF, Tab 1. However, during proceedings
below, she withdrew her request, IAF, Tab 8, and the administrative judge decided the
appeal based on the written record.
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disapproving the appellant’s claim for Social Security disability benefits. ID at
10-11.
¶4 The administrative judge found that the September 28, 2014 assessment of
the appellant’s primary care physician that the appellant experiences heart pain
throughout the day is contradicted by his assessment just 9 days earlier, on
September 19, 2014, that the appellant reported no chest pain, no arm pain on
exertion, no shortness of breath when walking or lying down, no palpitations, and
no heart murmur. ID at 11. The administrative judge also found that the
appellant’s primary care physician’s opinion that her supraventricular
tachycardia 4 did not resolve with a procedure, called a catheter ablation,
performed in 2013 was contradicted by another physician who saw the appellant
and reported that the ablation was successful and that the appellant no longer had
daily palpitations, felt well, and was in good spirits. ID at 11. The administrative
judge additionally found that the opinion of the appellant’s primary care
physician is also inconsistent with a stress test that the appellant underwent and
that found no abnormality. ID at 12. The administrative judge found that the
record is further lacking in objective medical evidence to show that the appellant
is disabled by a low back condition or by anxiety disorder. ID at 12. Finally, he
found the appellant’s own statements regarding her symptoms and their effect on
her ability to work are not supported by the medical evidence. ID at 13. The
administrative judge found that the appellant failed to meet her burden to prove
entitlement to disability retirement benefits. ID at 13.
¶5 In her petition for review, the appellant points out that SSA’s decision
found that she could not perform the duties of her Full Time Regular Carrier
position and that her supervisor also stated that she could not perform the duties
of her position. Petition for Review (PFR) File, Tab 1. She also asserts that she
4
Supraventricular tachycardia is a condition that evidences itself, from time to time, by
the heart beating very fast for a reason other than exercise, high fever, or stress. See
WebMD, http://www.webmd.com (last visited March 19, 2015).
4
could not obtain further medical evidence because she no longer has medical
insurance. Id.
¶6 In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Thorne v. Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5
(2007); 5 C.F.R. § 1201.56(a)(2). To be eligible for a disability retirement
annuity under Federal Employees Retirement System (FERS), an employee must
show the following: (1) she completed at least 18 months of creditable civilian
service; (2) while employed in a position subject to FERS, she became 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 is
incompatible with either useful and efficient service or retention in the position;
(3) the disabling condition is expected to continue for at least 1 year from the
date that the application for disability retirement benefits was filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) she did not decline a reasonable offer of reassignment to
a vacant position. Thorne, 105 M.S.P.R. 171, ¶ 5; see 5 U.S.C. §
8451(a); 5 C.F.R. § 844.103(a). An appellant may meet the statutory requirement
that she “be unable, because of disease or injury, to render useful and efficient
service in [her] position” by showing that: (1) the medical condition caused a
deficiency in performance, attendance, or conduct, as evidenced by the effect of
her medical condition on her ability to perform specific work requirements, or her
medical condition prevented her from being regular in attendance, or caused her
to act inappropriately; or (2) the medical condition is incompatible with useful
and efficient service or retention in the position by demonstrating that her
medical condition is inconsistent with working in general, in a particular line of
work, or in a particular type of work setting. Rucker v. Office of Personnel
Management, 117 M.S.P.R. 669, ¶ 10 (2012).
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¶7 Here, there is no dispute that the appellant completed at least 18 months of
creditable civilian service, the employing agency stated that it could not
accommodate her alleged disabling medical condition, and she did not decline a
reasonable offer of reassignment to a vacant position. At issue is whether the
appellant showed that while employed in a position subject to FERS, she became
disabled because of a medical condition, resulting in a deficiency in performance,
conduct, or attendance. The Board will consider all pertinent evidence in
determining an appellant's entitlement to disability retirement, including:
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and evidence relating to the effect of the applicant’s
condition on her ability to perform the duties of her position. See, e.g.,
Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 19 (2012);
Dunn v. Office of Personnel Management, 60 M.S.P.R. 426, 432 (1994).
¶8 In a disability retirement application under FERS, the Board must consider
an award of Social Security disability benefits. See Suter v. Office of Personnel
Management, 88 M.S.P.R. 80, ¶ 12 (2001). However, as is the case here, the
Board may find that such evidence is outweighed by inconsistent and inadequate
medical evidence. Id. Similarly, as here, where there is no award of Social
Security disability benefits, but a statement by SSA that the appellant could not
perform the duties of her Regular Carrier position, the Board may find that such
evidence is outweighed by the inconsistent and inadequate medical evidence. We
agree with the administrative judge that SSA’s comment in its decision is
outweighed by the inconsistent and inadequate medical evidence of record. As
noted, even the appellant’s primary care physician gave contradictory assessments
of the appellant’s condition. His September 28, 2014 assessment of the
appellant’s condition indicated that that the appellant experienced heart pain
throughout the day, yet his assessment just 9 days earlier, on September 19, 2014,
was that the appellant reported no chest pain, no arm pain on exertion, no
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shortness of breath when walking or lying down, no palpitations, and no heart
murmur. ID at 11; IAF, Tab 11, Subtab 5.
¶9 The Board also will consider a supervisor’s statement in a disability
retirement application under FERS. See Beeler-Smith v. Office of Personnel
Management, 112 M.S.P.R. 479, ¶ 12 (2009). Here, the appellant’s supervisor in
the Regular Carrier position stated that the appellant was “unable to perform any
duties of the job.” IAF, Tab 4 at 33. The supervisor apparently relied on the
September 3, 2013 statement of the appellant’s primary care physician that the
appellant was “no longer capable of doing her full time job of being a mail
carrier.” Id. at 37. As noted, however, on September 19, 2014, that same
physician assessed that the appellant reported no chest pain, no arm pain on
exertion, no shortness of breath when walking or lying down, no palpitations, and
no heart murmur. IAF, Tab 11, Subtab 5. Because the Supervisor’s Statement
relies on medical evidence that is later contradicted, we find that it is not
competent evidence establishing that the appellant’s conditions preclude her from
performing the duties of her position.
¶10 We do not dispute the appellant’s statement that at this time her ability to
get treatment is limited because of her lack of health insurance and other financial
resources. The Board will not deny disability retirement for an otherwise
qualified applicant because she was unable to afford more expensive treatment.
See Craig v. Office of Personnel Management, 92 M.S.P.R. 449, ¶ 18 n.8 (2002).
Here, however, we find that the medical evidence that the appellant submitted
from physicians treating her while she was still employed by the U.S. Postal
Service, when she presumably had health insurance, is contradictory and
insufficient for her to meet her burden to prove entitlement to disability
retirement.
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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
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
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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.