The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LETISIA C. MILLER, DOCKET NUMBER
Appellant, AT-844E-14-0925-I-1
v.
OFFICE OF PERSONNEL DATE: July 8, 2015
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Bradley Ezell, Mobile, Alabama, for the appellant.
Thomas Styer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND 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
that denied her request for disability retirement under the Federal Employees’
Retirement System (FERS). For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s petition for review, VACATE the initial decision, and REMAND the
appeal to the Atlanta Regional Office for further adjudication in accordance with
this Order.
BACKGROUND
¶2 The appellant, a GS-9 Investigative Analyst, filed an application for
disability retirement benefits under FERS based on restrictive lung disease,
asthma, severe allergies, muscle and bone weakness, tremors, and depression.
Initial Appeal File (IAF), Tab 4 at 23-24. She also resigned, effective May 10,
2013, due to “serious health issues.” IAF, Tab 6 at 325. OPM denied the
appellant’s disability retirement application in initial and reconsideration
decisions. IAF, Tab 4 at 4-7, 11-15. The appellant filed a Board appeal and
requested a hearing. IAF, Tab 1. After holding the appellant’s requested hearing,
Hearing Compact Disc (HCD), the administrative judge issued an initial decision
that affirmed OPM’s reconsideration decision, see IAF, Tab 24, Initial Decision
(ID). The appellant has filed a petition for review, OPM has filed a response, and
the appellant has filed a reply. Petition for Review (PFR) File, Tabs 1, 3-4. After
the record closed on review, the appellant submitted a May 28, 2015 “Fully
Favorable” decision from the Social Security Administration (SSA) that awarded
her disability insurance benefits and found that she was disabled under the Social
Security Act since May 11, 2013. See PFR File, Tab 5. We construe this
submission as a request by the appellant to consider SSA’s decision in our
analysis of this matter.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The Board may grant a petition for review when there is new and material
evidence which, despite due diligence, was not available when the record closed.
See 5 C.F.R. § 1201.115(d). The SSA decision was dated after the record closed
on review, and it is therefore new evidence. The Board has held that, while it is
not bound by SSA decisions to award social security benefits, it will consider
3
SSA decisions in adjudicating disability retirement cases where the conditions
underlying the applications to OPM and SSA are the same. Givens v. Office of
Personnel Management, 95 M.S.P.R. 120, ¶ 9 (2003). 2 While not dispositive, an
SSA decision awarding social security benefits is material evidence to be
considered by the Board and OPM in disability retirement cases. Id. (citing
Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995)). Thus,
because SSA’s “Fully Favorable” decision may change the outcome of this
appeal, it also constitutes material evidence. Under these circumstances, we
believe remand is appropriate. See Givens, 95 M.S.P.R. 120, ¶ 9.
¶4 In the SSA decision, the administrative law judge cited various medical
reports as the basis for her award, and most of this evidence is not part of the
Board’s record below. See PFR File, Tab 5. We find that it is in the interest of
justice to allow the appellant to submit the medical documentation considered by
SSA to the Board’s administrative judge on remand for consideration in
determining whether she met the requisite burden for establishing her entitlement
to disability retirement benefits. See Givens, 95 M.S.P.R. 120, ¶ 9; see also
Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411, ¶ 10 (2010)
(remanding the disability retirement appeal for the administrative judge to
consider the Department of Veterans Affairs’ Rating Decision, which was new
evidence and was based on the same medical condition as in the appellant’s
disability retirement application).
2
The SSA decision discusses the appellant’s Parkinson’s disease, restrictive lung
disease, bronchial asthma, and depression. See PFR File, Tab 5 at 6-9. In her disability
retirement application, the appellant references muscle and bone weakness and tremors,
but she does not mention Parkinson’s disease. See IAF, Tab 4 at 23-24. It appears,
however, that the appellant was not diagnosed with Parkinson’s disease until October
2014. See PFR File, Tab 5 at 7. Based on this evidence, we conclude that there are
sufficient similarities between the appellant’s disability retirement application and the
SSA matter to find that the underlying conditions are the same.
4
ORDER
¶5 For the reasons discussed above, we VACATE the initial decision and
REMAND this case to the Atlanta Regional Office for further adjudication in
accordance with this Order. On remand, the administrative judge shall afford the
parties an opportunity to submit evidence and argument, including a supplemental
hearing if necessary, on the effect in this appeal of the appellant’s receipt of SSA
disability benefits, along with any other evidence of disability provided to the
SSA. After considering any additional evidence and argument, the administrative
judge shall issue a new initial decision consistent with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.