The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAYNE A. HALE, DOCKET NUMBER
Appellant, DC-844E-15-0767-I-1
v.
OFFICE OF PERSONNEL DATE: March 3, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Layne A. Hale, Altavista, Virginia, pro se.
Linnette Scott, 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 reconsideration decision of the Office of Personnel Management
(OPM) denying his application for disability retirement benefits under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
administrative 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. 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, 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).
BACKGROUND
¶2 The appellant was a City Mail Carrier with the U.S. Postal Service until he
was removed in August 2015. Initial Appeal File (IAF), Tab 1 at 2, Tab 16,
Hearing Compact Disc (HCD) at 19:00-29:00. The record reflects that the
appellant stopped coming to work as of March 16, 2012, and as of May 23, 2014,
had utilized 4,320 hours of leave without pay for medical reasons. IAF, Tab 6
at 24. In April 2014, he submitted an application for disability retirement under
FERS to OPM, contending that he was unable to perform the duties of his
position as of November 2011 due to degenerative disc injuries to his back and a
shoulder injury. Id. at 20. OPM issued initial and reconsideration decisions
denying the appellant’s application for disability retirement benefits. Id. at 4-5,
12-18.
¶3 The appellant filed a timely Board appeal of OPM’s reconsideration
decision. IAF, Tab 1. After holding the appellant’s requested hearing, the
administrative judge issued an initial decision affirming OPM’s reconsideration
3
decision. IAF, Tab 17, Initial Decision (ID). The appellant has filed a petition
for review in which he asserts that the administrative judge erred in finding that
he failed to prove that his medical conditions were disabling. Petition for Review
(PFR) File, Tab 1 at 2. OPM has filed a response in opposition to the appellant’s
petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 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(b)(2)(ii). 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; (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).
¶5 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
4
(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,
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.
¶6 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.
¶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 his alleged disabling medical conditions, 2 and he did not decline a
reasonable offer of reassignment to a vacant position. At issue is whether the
2
On review, the appellant argues that the U.S. Postal Service could have accommodated
him by affording him light duty, and he submits as support, for the first time, letters
from a union official and a coworker. PFR File, Tab 1 at 2, 4-5. This appeal solely
concerns the denial of the appellant’s disability retirement application; to the extent he
is alleging that his removal was due to the U.S. Postal Service’s failure to accommodate
him, the administrative judge instructed him as to how to file such an appeal. IAF, Tab
3 at 1 n.1; ID at 2 n.2. In any event, such arguments do not support the appellant’s
disability retirement claim. See 5 C.F.R. § 844.103(a)(4) (requiring accommodation of
the disabling medical condition in the position held to be unreasonable).
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appellant showed that, while employed in a position subject to FERS, he became
disabled because of a medical condition that resulted in a deficiency in
performance, conduct, or attendance, or, alternatively, that is inconsistent with
working in general, working in a particular line of work, or working in a
particular type of setting.
¶8 In concluding that the appellant failed to meet his burden, the
administrative judge found that there was insufficient objective medical evidence
or reasoned medical opinion regarding the appellant’s inability to perform the
specific job duties of his position. ID at 14. She also found that the appellant’s
subjective accounts of his experience of pain alone were insufficient to support a
finding that he had a medical condition that rendered him unable to perform
useful and efficient service. Id.
¶9 We agree with the administrative judge that there is a lack of objective
evidence regarding how the appellant’s medical conditions precluded him from
performing his specific job duties; however, such evidence is not required to
prove entitlement to disability retirement benefits. See Henderson, 117 M.S.P.R.
313, ¶¶ 12–19 (overruling a line of cases that indicated such evidence is
required). Nonetheless, the administrative judge also properly considered the
appellant’s subjective account of his physical limitations and experience of pain,
including both his testimony and prior statements made to his doctors as reflected
in his medical documentation. ID at 7, 14; see Henderson, 117 M.S.P.R. 313, ¶¶
19, 23 (stating that subjective evidence of pain and disability is relevant and may
be entitled to great weight especially if it is not contradicted by the record).
¶10 An appellant may establish entitlement to disability retirement 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.” Vanieken–Ryals v. Office of Personnel
Management, 508 F.3d 1034, 1041 (Fed. Cir. 2007). OPM and the Board may,
however, give limited weight to such evidence where, among other things, there
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is contrary medical evidence or a lack of particularity in relating the diagnosis to
the nature and extent of the disability. Vanieken–Ryals, 508 F.3d at 1042.
¶11 We agree with the administrative judge that the appellant’s subjective
accounts regarding the disabling nature of his back and shoulder pain are entitled
to little weight in this case because they are contradicted by his medical
documentation. ID at 14. Although the appellant was diagnosed with right
shoulder pain, chronic back pain, and lumbar degenerative disc disease, such
diagnoses were primarily based on his self-reported assessment of his symptoms
rather than on clinical findings, test results, or other evidence. ID at 5-12; IAF,
Tab 6. Despite the appellant’s subjective reports of pain, his doctors’
assessments indicate for the most part normal ranges of motion and results with
some mild symptoms, abnormalities, and tenderness. ID at 5-12; IAF, Tab 6. His
doctors’ assessments also do not discuss the nature and extent to which these
diagnoses render the appellant disabled. ID at 5-12; IAF, Tab 6. To the contrary,
as the administrative judge noted, on January 17, 2013, the appellant’s primary
care physician indicated that the appellant was not incapacitated or totally unable
to perform any work. ID at 14. The appellant has not submitted any evidence to
the contrary. Accordingly, the administrative judge properly found that the
appellant failed to establish that his back or shoulder pain caused a deficiency in
his performance, attendance, or conduct, 3 or, in the alternative, was inconsistent
with work in general, in a particular line of work, or in a particular type of work
setting.
¶12 On review, the appellant asserts that he does not have additional medical
documentation because he cannot afford continued treatment since his health
insurance was cancelled in 2013. PFR File, Tab 1 at 2. The Board will not deny
3
The appellant’s supervisor indicated that the appellant had no conduct or performance
issues, except as a result of his poor attendance as of March 16, 2012. IAF, Tab 6
at 24. However, inadequate performance based on excessive absenteeism alone is
insufficient to establish a disability retirement claim. See, e.g., Guthrie v. Office of
Personnel Management, 105 M.S.P.R. 530, ¶ 6 (2007).
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disability retirement for an otherwise qualified applicant because he 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
record evidence, including medical evidence that the appellant submitted from
physicians treating him prior to 2013, while he had health insurance, is
insufficient for him to meet his burden to prove entitlement to disability
retirement.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.