Lauren McLaughlin v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAUREN MCLAUGHLIN, DOCKET NUMBER

Appellant, PH-844E-20-0282-I-1

v.

OFFICE OF PERSONNEL DATE: February 27, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Leah Bachmeyer Kille, Esquire, Lexington, Kentucky, for the appellant.

Moraima Alvarez, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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 her application for disability retirement under the Federal

Employees’ Retirement System (FERS). For the reasons discussed below, we

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

GRANT the appellant’s petition for review and REVERSE the initial decision and

OPM’s reconsideration decision.

BACKGROUND

¶2 The appellant served as a Consumer Safety Officer with the Food and Drug

Administration (FDA) from March 24, 2002, until she resigned effective May 7,

2018. Initial Appeal File (IAF), Tab 4 at 77, 100, 102 . In this position, she

inspected, investigated, and collected samples of commodities that go “on or in

[the human] body.” IAF, Tab 20, Hearing Recording (HR) at 3:05 (testimony of

the appellant). Her position required “quite a bit of travel. . . . Probably a 2 hour

drive . . . each way” on a typical day. HR at 4:50 (testimony of the appellant).

On May 6, 2019, she applied for disability retirement under FERS based on the

following conditions: post-traumatic stress disorder (PTSD), major depressive

disorder, segmental myoclonus, cervicalgia, and regional myoclonic jerks . IAF,

Tab 4 at 55-56, 79-81, 83-86.

¶3 Since 1987, the appellant has suffered from depression “on and off over the

years.” IAF, Tab 15 at 37; HR at 59:50 (testimony of the appellant). Her PTSD

began in 1988. IAF, Tab 15 at 37; HR at 59:50 (testimony of the appellant). In

2008, she was diagnosed with segmental myoclonus caused by carbon monoxide

poisoning, resulting in regional myoclonic jerks, back and neck pain

(cervicalgia), and fatigue. HR at 19:00 (testimony of the appellant); IAF, Tab 4

at 80, Tab 15 at 19-20. Myoclonus is a condition that causes sudden muscular

contractions, “generally due to a central nervous system lesion.” Myoclonus,

Stedman’s Medical Dictionary 584030, accessed via westlaw.com (last visited

Feb. 27, 2023). According to the appellant, her medical conditions prevented her

from performing various duties of her position, including driving. HR at 29:00

(testimony of the appellant).

¶4 OPM issued a reconsideration decision, denying the appellant’s application

for disability retirement. IAF, Tab 4 at 5-8. The appellant appealed OPM’s

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reconsideration decision to the Board and requested a hearing. IAF, Tab 1. After

holding a telephonic hearing, the administrative judge issued an initial decision

that affirmed OPM’s decision. IAF, Tab 17 at 4, Tab 22, Initial Decision (ID)

at 1, 12-13. She reasoned that the appellant did not show that her segmental

myoclonus caused a service deficiency in performance, conduct, or attendance .

ID at 4-12. She also appears to have determined that the appellant did not show

that the agency could not reasonably accommodate her myoclonus. ID at 9-10.

She did not make a finding as to the whether the appellant’s PTSD and depression

were disabling. ID at 12-13.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. OPM has filed a response. PFR File, Tab 3. The appellant has filed

a reply to OPM’s response and a motion to submit additional evidence. 2 PFR

File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶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);

2

The appellant moves to introduce documents from September 2010 through

August 2012 relating to her medical conditions and restrictions. PFR File, Tab 4 at 6-7,

9-25. She argues that these documents were unavailable at the close of record because

“they were archived in a retired and inactive email address” and that she only realized

the importance of these documents after the initial decision and the agency’s response

to her petition for review made it clear that the administrative judge and agency gave

little weight to her hearing testimony. PFR File, Tab 4 at 7. Under 5 C.F.R.

§ 1201.115, the Board generally will not consider evidence submitted for the first time

with a petition for review absent a showing that it was unavailable before the record

was closed before the administrative judge despite the party’s due diligence. Avansino

v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). An appellant’s failure, as here,

to realize the need for more complete documentation is a lack of due diligence. Black

v. Department of the Treasury, 26 M.S.P.R. 529, 530-31 (1985). The appellant has not

provided any explanation as to why she could not attempt to log onto this email account

prior to the close of record. Therefore, we deny the appellant ’s motion to submit new

evidence, and we decline to consider those documents here.

4

5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement annuity

under 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 condition is e xpected 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. 5 U.S.C. § 8451(a);

Thorne, 105 M.S.P.R. 171, ¶ 5; 5 C.F.R. § 844.103(a).

¶7 The administrative judge found, and the parties do not dispute on review,

that the appellant met the 18-month service requirement under FERS at the time

she filed her application and did not decline a reasonable offer of reassignment to

a vacant position. ID at 4, 9-10; IAF, Tab 4 at 60-61, 97-100, 102, Tab 14 at 4-5,

Tab 15 at 24; HR at 34:00, 43:00 (testimony of the appellant). Thus, the

appellant’s entitlement to a disability retirement annuity depends on whether she

had a disabling medical condition that was expected to last for at least 1 year

from May 2019 and whether accommodating that condition was unreasonable.

Thorne, 105 M.S.P.R. 171, ¶ 5.

The administrative judge erred in finding that there was in sufficient evidence that

the appellant’s medical conditions prevented her from rendering useful and

efficient service.

¶8 There are two ways to meet the statutory requirement that the employee “be

unable, because of disease or injury, to render useful and ef ficient service in the

employee’s position.” Henderson v. Office of Personnel Management,

117 M.S.P.R. 313, ¶¶ 16 (2012); Jackson v. Office of Personnel Management,

118 M.S.P.R. 6, ¶¶ 6-7 (2012) (applying Henderson to FERS cases). First, an

5

appellant can establish that 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 that her

medical condition prevented her from being regular in attendance or caused her to

act inappropriately. Rucker v. Office of Personnel Management, 117 M.S.P.R.

669, ¶ 10 (2012); Henderson, 117 M.S.P.R. 313, ¶ 17. Alternatively, the

employee can show 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, 117 M.S.P.R. 669, ¶ 10; Henderson, 117 M.S.P.R. 313, ¶ 17.

¶9 In her initial decision, the administrative judge found insufficient evidence

to show that the appellant’s segmental myoclonus prevented her from rendering

useful and efficient service. ID at 4-13. The appellant disputes this finding. PFR

File, Tab 1 at 5-10. We agree with the appellant and conclude that she proved

that her myoclonus, combined with her mental health conditions, caused a

deficiency in performance, as evidenced by the effect of her medical condition s

on her ability to perform the driving requirements of her position.

The appellant established that her position required extensive driving.

¶10 An appellant’s inability to perform the extensive driving requirements of

her position can render her disabled from rendering useful and efficient service . 3

See Wommack v. Office of Personnel Management, 8 M.S.P.R. 218, 220-22

(1981) (finding the evidence sufficient to support the appellant’s contention that

he was disabled based on a medical condition that rendered him unable to fulfill

the extensive driving requirements of his position). The appellant testified

without contradiction that her position “require[d] at least 50% travel.” HR

3

To the extent that the appellant also had difficulty driving to and from work, we do

not consider those limitations here. IAF, Tab 4 at 30. Difficulty in commuting is not a

relevant consideration in a disability retirement determination. Jolliffe v. Office of

Personnel Management, 23 M.S.P.R. 188, 191 (1984), aff’d, 785 F.2d 320 (Fed. Cir.

1985) (Table).

6

at 29:20 (testimony of the appellant). She added that typical driving during the

work day was “about 2 hours each way.” HR at 5:10 & 28:00 (testimony of the

appellant). This testimony was corroborated by her position description, which

specified that approximately 50% of her duties involved travel in order to conduct

inspections and investigations. IAF, Tab 5 at 4-9. The administrative judge

appears to have found that driving was a requirement of the appellant’s position,

and we agree. ID at 11-12.

The administrative judge erred in discounting the appellant’s medical evidence.

¶11 The administrative judge appeared to find that the appellant failed to

provide sufficient medical evidence to support her claim that she was unable to

perform the duties of her position. ID at 4-12. The appellant argues that she met

her burden to prove that she was medically unable to drive. PFR File, Tab 1

at 6-8, 9-10, 12-13. We agree with the appellant. 4

¶12 In her initial decision, the administrative judge applied a “general” rule that

medical evidence must show how the employee’s conditions affect her ability to

perform specific job duties and requirements, and she determined that the

appellant’s medical evidence failed to make this showing. ID at 4, 6, 8. For

example, she found that the medical opinion of the appellant’s treating

neurologist did not support the appellant’s disability retirement application

because he did not “address[] . . . the impact of the appellant’s condition on her

specific work requirements,” and “he had not reviewed the [appellant’s] position

description” or materials related to her disability retirement application. ID at 8.

In finding the neurologist’s opinion deficient, the administrative judge cited to

the Board’s decision in Henderson, 117 M.S.P.R. 313, ¶¶ 12, 14. ID at 4.

4

Because, as discussed below, we find the appellant met her burden to prove eligibility

for a disability retirement annuity based on her driving restriction, we do not reach the

issue of whether, as she argues on review, her medical conditions also caused

deficiencies in her attendance and conduct. PFR File, Tab 1 at 5 -8.

7

¶13 In fact, the Henderson decision rejected this approach. In Henderson, the

Board overruled the line of cases that indicated there was a “general” rule that an

appellant’s entitlement to a disability retirement is conditioned on her providing

evidence from a medical provider explaining specifically how her medical

conditions affected specific work requirements. Henderson, 117 M.S.P.R. 313,

¶¶ 17-18.

¶14 The administrative judge also appears to have found the appellant’s

neurologist’s notes insufficient because they reiterated what the appellant said to

him during their sessions and did not state that the appellant was medically

impaired. ID at 6-9. This determination was also in error. Although objective

medical evidence must be considered, such evidence is not required to establish

disability. Doe v. Office of Personnel Management, 109 M.S.P.R. 86, ¶ 10 (2008)

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

1040-44 (Fed. Cir. 2007)). As stated by the U.S. Court of Appeals for the Federal

Circuit, “an 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.” Vanieken-Ryals, 508 F.3d at 1041.

¶15 Similarly, the administrative judge erred in disregarding the appellant’s

documentation from the healthcare providers who treated her PTSD and

depression. ID at 7, 10-11. At one point, the administrative judge suggested that

this documentation was not relevant because these healthcare providers did not

treat the appellant’s myoclonus. ID at 7-8. However, the conditions based upon

which the appellant sought a disability retirement annuity included not only

myoclonus, but also PTSD and depression. IAF, Tab 4 at 80. The requisite

showing of medical disability may be made based on the existence of a

combination of medical conditions. Hunt v. Office of Personnel Management,

105 M.S.P.R. 264, ¶ 35 (2007). Further, it is appropriate to rely on the causal or

exacerbating effect of various medical conditions on one another . Id. Thus, the

8

appellant’s medical evidence related to her mental health conditions is relevant in

this appeal.

¶16 Further, to the extent that the administrative judge indicated that the

medical documentation related to the appellant’s mental health should be

discounted because her conditions arose out of “her traumatic experiences and

relationship and financial difficulties,” we are not persuaded. ID at 7, 10-11.

The cause of a condition is not relevant in determining whether an applicant is

eligible for disability retirement. Marucci v. Office of Personnel Management,

89 M.S.P.R. 442, ¶ 9 (2001). Thus, we cannot agree with the administrative

judge that this medical documentation does not warrant serious consideration .

¶17 Finally, the administrative judge erred in giving little to no weight to the

appellant’s medical evidence of her mental health conditions because the notes

from her mental health providers began when the appellant was still employed,

but no longer reporting to work, and continued after her resignation. ID at 7,

10-11. The appellant need only establish that she became disabled while

employed in a position subject to FERS. 5 C.F.R. § 844.103(a)(2) (providing, as

relevant here, that to be eligible for a FERS disability retirement annuity, the

applicant “must, while employed in a position subject to FERS, have become

disabled because of a medical condition, resulting in a deficiency in performance,

conduct, or attendance”). The appellant’s absence from work does not indicate a

lack of disability, and indeed a deficiency in attendance may be a basis for

finding an employee has a disabling condition. Id. Thus, the appellant’s medical

evidence dating from after she began a period of extended leave is relevant here.

¶18 Further, as to medical evidence dating after her resignation , post-separation

medical evidence can be probative of whether the appellant became disabled

while serving in a FERS position when “proximity in time, lay testimony, or some

other evidence provides the requisite link to the relevant period.” Reilly v. Office

of Personnel Management, 571 F.3d 1372, 1382 (Fed. Cir. 2009). We have

considered the appellant’s post-resignation medical evidence here because she

9

provided testimony linking her worsening mental conditions and myoclonus to the

period of time when she resigned. HR at 12:20, 27:00, 29:20, 32:00 & 47:00

(testimony of the appellant).

The appellant established that her medical conditions caused her to be unable to

perform the driving requirements of her position.

¶19 The Board will consider all pertinent evidence in determining an appellant’s

entitlement to disability retirement: 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. Henderson, 117 M.S.P.R. 313, ¶ 19. Nothing in the law

mandates that a single provider tie all of this evidence together. Id. For example,

if the medical provider sets forth clinical findings, a diagnosis, and a description

of how the medical condition affects the appellant’s activities in gener al terms,

the Board could consider that evidence, together with the appellant’s subjective

account of how the condition has affected her ability to do her job and her daily

life, testimony or statements from supervisors, coworkers, family members, and

friends, and the appellant’s position description. Id.

¶20 Here, the appellant testified that her myoclonic jerks cause d her to have two

car accidents, one in her personal vehicle in 2010, when her arm jerked and she

drove into a pole, and one in a Government vehicle on an unspecified date in

2017, when she “dragged a car through a fence gate and took out the whole left

side of the vehicle.” HR at 12:20 & 32:00 (testimony of the appellant). The

second accident led her to conclude that she could no longer drive. Id. at 12:20

(testimony of the appellant). She explained, “as the stress . . . increased, my

symptoms were increasing . . . and it became a vicious cycle—with my

symptoms exacerbating, stressing about driving.” Id. at 27:00 (testimony of the

appellant). She testified that as a result, she was unable to perform the driving

requirement of her job stating, “I was sick . . . I was really struggling, the

commute, and drive and to not crash a car and I was under a lot of stress” an d

10

“traveling is my difficulty. I can’t drive, I don’t drive, and I won’t drive.” Id.

at 29:20 (testimony of the appellant). She also testified that her job requires a

high level of concentration and that she “had difficulty thinking straight and

staying focused” because of medication she was taking for her depression. Id.

at 47:00 (testimony of the appellant). On the Agency Certification of

Reassignment and Accommodation Efforts completed by the appellant’s

supervisor in connection with her disability retirement application, he observed,

in essence, that the appellant’s medical conditions prevented her from

“perform[ing] the functions of her job as described in her position description .”

IAF, Tab 18 at 34, 36. Similarly, the Supervisor’s Statement he completed

reflected his assessment that her performance was less than fully successful. Id.

at 47-48. Eventually, in November 2017, the appellant stopped reporting to work

for medical reasons and was on leave without pay through her resignation. Id.

at 46; HR at 49:00 (testimony of the appellant).

¶21 Consistent with the appellant’s testimony, both the appellant’s mental

healthcare providers and her neurologist indicated that her mental health

conditions exacerbated her myoclonus, and vice versa, to the point where she was

no longer able to perform her job functions. For instance, in January 2018, the

appellant’s treating licensed clinical social worker (LCSW) completed a Family

and Medical Leave Act of 1993 certification form stating that the appellant

should take extended leave from January 23, 2018, through January 23, 2019.

IAF, Tab 15 at 32-35. The LCSW explained that the appellant “displays tics,

tremors, spasms and seizures which cause embarrassment, shame, inadequacy,

and worthlessness,” which in turn “cause[] her to have daily panic attacks and

severe anxiety which interrupts daily functioning.” Id. at 33-34.

¶22 The appellant’s neurologist, who has treated her since at least 2012, also

corroborated her testimony. His January 17, 2018 notes reflect that, “starting in

October or November [the appellant] had a re-exacerbation of her depression and

she [has] undergone a number of different medication changes.” IAF, Tab 4

11

at 30. He stated that her myoclonus “had been under control” with the medication

Lamictal “but unfortunately as her mood disorder worsened so to[o] did her

segmental myoclonus. . . . [S]he has been out of work since late November 2017

and believes that she will be unable to return to work in the capacity that she had

been secondary to her [myo]clonus and mood disorder.” 5 Id. His notes reflected

that the medications she was taking for her conditions negatively affected her

judgment and driving. Id. Shortly thereafter, in February 2018, he recommended

that the appellant work from home “due to limitations on driving for long periods

of time.” IAF, Tab 15 at 25. After the appellant resigned, her neurologist

expressed his belief that she stopped working because her work environment

caused stress, which in turn exacerbated her myoclonus “such that [she] could not

perform her job.” Id. at 21-23.

¶23 As discussed above, the administrative judge appears to have found the

appellant’s medical evidence to be lacking. We do not agree. I n assessing the

probative weight of medical opinion, the Board considers whether the opinion

was based on a medical examination, whether the opinion provided a reas oned

explanation for its findings as distinct from mere conclusory assertions, the

qualifications of the expert rendering the opinion, and the extent and duration of

the expert’s familiarity with the appellant’s treatment. Wren v. Department of the

Army, 121 M.S.P.R. 28, ¶ 9 (2014). Here, the appellant provided medical

documentation from her treating neurologist and LCSWs. She had a longstanding

treatment relationship with her neurologist, beginning in 2012. IAF, Tab 15

at 19. Her neurologist’s stationery identified him as a medical doctor with a

board certification in neurology and a Ph.D., and we have no reason to question

those qualifications. Id. at 25.

5

He referred to this anti-seizure medication by its generic name, lamotrigine. See

https://www.mayoclinic.org/drugs-supplements/lamotrigine-oral-route/description/drg-

20067449 (last visited Feb. 27, 2023). For the sake of clarity and consistency, we will

refer to it in this decision by the brand name Lamictal.

12

¶24 The appellant began treatment at the clinic that was the source of her mental

health documentation in December 2017. Id. at 33, 37. She received counseling

from a particular LCSW at that clinic beginning as early as July 2018. Id. at 37,

46. Thus, the clinic and LCSW’s familiarity with the appellant began months

prior to her May 2019 application for disability retirement . IAF, Tab 4 at 55-56,

79-81, 83-86. While we have less information about the qualifications of the

appellant’s treating LCSW, we have no reason to doubt that she was qualified to

treat depression and PTSD.

¶25 The medical notes, discussed above, are specific, discuss relevant medical

factors, and are not contradicted. See Confer v. Office of Personnel Management,

111 M.S.P.R. 419, ¶ 20 (2009) (indicating that these factors, as well as others, are

considerations in determining the probative value of medical evidence) . Thus, we

find that the opinion of the appellant’s healthcare providers is entitled to

significant probative weight and that, based on this evidence in combination with

the appellant’s testimony and her supervisor’s statements, she established that her

medical conditions caused her to be unable to perform the driving requirements of

her position. ID at 6, 8.

The evidence does not support the administrative judge’s conclusion that the

appellant refused to take medication that controlled her myoclonus.

¶26 The administrative judge also appeared to find that the appellant’s

myoclonus became disabling as a result of the appellant’s refusal to take

Lamictal, against the advice of her neurologist. ID at 8-9. The appellant

challenges this finding on review, arguing that she stopped taking the Lamictal

after it stopped working effectively. PFR File, Tab 1 at 11. She argues that her

neurologist approved of this change in medication. Id. at 11-12.

¶27 A voluntary refusal to accept facially reasonable treatment can bar

entitlement to disability retirement benefits. Frontan v. Office of Personnel

Management, 90 M.S.P.R. 427, ¶ 8 (2001). However, the Board has held that an

appellant need not take medications that do not enable her, with or without

13

accommodation, to perform the duties of her position. Doe, 109 M.S.P.R. 86,

¶ 20. For example, the has Board found that an appellant established entitlement

to disability retirement when both she and her doctor testified that prescribed

medications did not control her PTSD. Id. Similarly, the Board has accepted

appellants’ arguments that side effects prevented them from taking their

prescribed medication, and the Board has not denied disability retirement when

drugs are no longer taken for this reason. Confer, 111 M.S.P.R. 419, ¶¶ 23-24.

Thus, the has Board found insufficient evidence that an appellant refused to

follow treatment recommendations when she alleged that she stopped taking two

different medications for depression because one caused nausea and the other

caused dizziness. Id.

¶28 Initially, Lamictal helped to control the appellant’s myoclonic jerks. HR

at 13:30 (testimony of the appellant); IAF, Tab 4 at 28, Tab 5 at 127-28.

However, according to the appellant, despite this medication, she began to have

“break-through tics” or jerks in 2017. HR at 14:30 (testimony of the appellant).

She indicated that one such incident caused her to have her 2017 accident in a

Government-owned vehicle. HR at 12:20 & 32 (testimony of the appellant). It

was at that time that she determined she could no longer drive. Id.; IAF, Tab 4

at 80. In her disability retirement application, she stated that she became disabled

from her position in October 2017, and she testified that she last reported to work

in November 2017. IAF, Tab 4 at 79; HR at 49:00 (testimony of the appellant).

¶29 In November 2017, the appellant advised her neurologist that she had

reduced her Lamictal. IAF, Tab 4 at 28. Although initially her neurologist stated

that the appellant’s myoclonus reemerged around November 2017 because she cut

back on her Lamictal in January 2018, he stated that it was her worsening mood

disorder that caused her myoclonus to worsen. IAF, Tab 4 at 30, Tab 15 at 26.

We have considered this conflicting explanation, but we find that the appellant

has established by a preponderance of the evidence that she did not refuse to

follow treatment recommendations.

14

¶30 First, the appellant testified that she stopped taking the medication in

January 2018 because, in addition to no longer preventing her myoclonic jerks, it

was difficult to take and caused stomach pain. HR at 14:16 & 1:20:00 (testimony

of the appellant). She also testified that her neurologist was on board with her

decision to stop taking Lamictal. Id. at 14:16 (testimony of the appellant).

Consistent with that testimony, at the time of her resignation in May 2018, the

appellant’s neurologist stopped recommending Lamictal and prescribed her only

clonazepam on an as-needed basis for her myoclonus. IAF, Tab 4 at 32-33. In

September 2020, her neurologist confirmed via interrogatories that the appellant

has been compliant with reasonably prescribed medical treatment. IAF, Tab 15

at 23. Thus, under the circumstances of this case, we find that the evidence does

not show that the appellant refused to follow treatment recommendations. Even if

she had, we would find that her uncontroverted explanation that the Lamictal

became less effective and caused stomach pain is a legitimate basis for stopping

the medication.

The appellant’s medical condition was not situational or confined to a single

work environment.

¶31 OPM argues that the appellant’s depression and anxiety were situational

based on “troubles at work stemming from the Weintgarten [sic] Investigation ,

reprimands and leave restriction.” PFR File, Tab 3 at 6. Among OPM’s

prehearing exhibits is a November 1, 2017 Memorandum of Weingarten

Investigative Interview regarding the appellant’s alleged unauthorized use of a

Government-owned vehicle on August 24, 2017, and her failure to account for her

whereabouts on August 30, 2017. IAF, Tab 18 at 12-14. There was no testimony

during the hearing explaining the relevance of this memorandum, nor did the

administrative judge discuss it in her initial decision. HR; ID.

¶32 The Board has rejected disability claims when the appellant’s conditions

were largely situational, i.e., apparent only in her work environment or in the

context of what she perceives as a hostile work environment. Luzi v. Office of

15

Personnel Management, 109 M.S.P.R. 79, ¶ 9 (2008); Cosby v. Office of

Personnel Management, 106 M.S.P.R. 487, ¶¶ 7, 10 (2007). However, the Board

has distinguished such circumstances from ones in which job-related stress

precipitated and exacerbated an appellant’s condition, which was itself disabling.

Doe, 109 M.S.P.R. 86, ¶ 18; Thorne, 105 M.S.P.R. 171, ¶ 15. The Board has

repeatedly held that job-related stress resulting in physical or mental impairments

that prevent an employee from performing the duties required in her position can

warrant the granting of disability retirement. Doe, 109 M.S.P.R. 86, ¶ 18;

Thorne, 105 M.S.P.R. 171, ¶ 15; Kimble v. Office of Personnel Management,

102 M.S.P.R. 604, ¶ 14 (2006).

¶33 Here, the medical evidence and testimony do not support a finding that the

appellant’s segmental myoclonus and depression were a reaction to her particular

workplace, “troubles” from the Weingarten investigation, or attendance-related

reprimands and leave restriction. Rather, these conditions were apparent outside

of the specific work environment at the FDA. The record shows that the

appellant was suffering from worsening depression since 2012 and, according to

December 2017 notes from a treating LCSW, “ha[d] been isolating herself for . . .

years to the point where she [was] in danger of losing her job.” IAF, Tab 15

at 37. The appellant suffered from depression both before and after her

resignation, causing her to isolate herself, “not leav[e] her bed or home for days,”

and not shower or otherwise care for herself. Id. at 46-77, 84. The appellant

similarly testified that she continues to suffer from her mental health conditions,

despite complying with treatment and incorporating changes to diet and exercise.

HR at 35:00 (testimony of the appellant). The appellant also testified that her

myoclonus is permanent, she has not driven since 2018, and she no longer has a

valid driver’s license due to her myoclonic jerks. Id. at 12:20, 35:00 (testimony

16

of the appellant). Thus, we do not find that her depression and anxiety were

situational. 6

¶34 Similarly, to the extent OPM is arguing that the appellant did not resign

until she was at risk of discipline, thereby detracting from her claims of

disability, we are not persuaded. The Board has held that an appellant’s

application for disability retirement in the face of an impending removal for

misconduct may cast doubt on the veracity of her application. Henderson v.

Office of Personnel Management, 109 M.S.P.R. 529, ¶¶ 2-3, 9, 21 (2008) (finding

that the appellant established an entitlement of disabilit y retirement despite the

suspicious timing of his application, which occurred after he was indefinitely

suspended pending the outcome of a criminal charge of marijuana distribution).

¶35 The investigative interview into the appellant’s alleged unauthorized use of

a Government vehicle and unexplained unavailability occurred in

November 2017, the same month she began a period of extended leave that ended

with her May 2018 resignation. IAF, Tab 4 at 102, Tab 18 at 12-14; HR at 49:00

(testimony of the appellant). The fact that less than 1 month passed between the

appellant being accused of misconduct and her initiating a lengthy absence ending

6

In its response to the petition for review, OPM also alleges that the appellant “has a

history of alcohol abuse, that apparently . . . had a flare up during her performance and

attendance issues at work.” PFR File, Tab 3 at 6. The administrative judge n oted “the

appellant’s history of overusing alcohol” in her decision. ID at 7. However, there is

nothing in the record to support OPM’s allegation that the appellant’s alcohol use

caused her performance and attendance issues. Moreover, as previously disc ussed, the

appellant has established that her conditions prevented her from performing the driving

requirements of her position. The Board will only consider medical conditions listed in

the appellant’s disability retirement application. Ballenger v. Office of Personnel

Management, 101 M.S.P.R. 138, ¶¶ 12-13 (2006) (clarifying that the Board may not

consider evidence relating to a medical condition that was never the subject of the

disability retirement application in question). Further, we decline to find that addiction

alone necessarily disqualifies an appellant from disability retirement based on other

medical conditions. See Bemiller v. Office of Personnel Management, 119 M.S.P.R.

653, ¶¶ 2, 8-16 (2013) (finding an appellant eligible for disability retirement based on

her fibromyalgia and chronic pain despite her prior dependency on Oxycodone and

Oxycontin).

17

in resignation casts some doubt on whether she stopped working for medical

reasons or to avoid potential discipline for her alleged serious misconduct. Dias

v. Department of Veterans Affairs, 102 M.S.P.R. 53, ¶ 16 (2006) (describing

absence without leave as a serious offense), aff’d per curiam, 223 F. App’x 986

(Fed. Cir. 2007); Garcia v. Department of the Air Force, 34 M.S.P.R. 539, 540-42

(1987) (finding that an administrative judge improperly mitigated the penalty of

removal for two instances of willful unauthorized use of a Government -owned

vehicle). However, we find that the fact that she did not apply for a disability

retirement annuity until a year after her resignation, combined with the medical

evidence and her subjective reports of the effect of her myoclonus and depression

on her ability to drive, outweighs any such doubt. IAF, Tab 4 at 55-56, 79-81,

83-86; see Henderson, 109 M.S.P.R. 529, ¶ 21 (determining that although the

timing of an appellant’s disability retirement application was suspect, he

presented overwhelming medical evidence that corroborated his subjective

complaints and established that his medical condition was incompatible with

either useful and efficient service or retention in his former position ).

¶36 Lastly, on review, the appellant challenges the administrative judge’s

implicit finding that the appellant’s conditions are not disabling because , in

April 2019, she took a 3-day consulting job in India inspecting the manufacturing

process of meclizine and because she sells Christmas trees. ID at 12.

¶37 Subsequent work history is relevant to whether an individual’s condition is

confined to a single work environment. Confer, 111 M.S.P.R. 419, ¶ 16. One is

not entitled to a disability retirement annuity when one’s medical condition is

based on a single work environment, e.g., because it grew out of a personal

conflict with a supervisor or resulted from a perceived hostile work environment

due to workload or understaffing. Id. However, an appellant is not required to

show that her disability rendered her incapable of working all positions. Angel v.

Office of Personnel Management, 122 M.S.P.R. 424, ¶ 14 (2015). The relevant

position for determining the appellant’s qualification for disability retirement

18

benefits is the position she last held before filing her application. Id. Here, the

appellant testified that although the consulting job involved similar

responsibilities, it was less demanding and involved less pressure and scrutiny

than her Consumer Safety Officer position with the FDA because she worked

from a checklist, which the FDA does not use or provide to Consumer Safety

Officers. HR at 51:30 and 1:10:00 (testimony of the appellant); PFR File, Tab 1

at 12-13. She also stated that observation work in the consulting job was less

intense because people were not as nervous to see a consultant as they were to see

an FDA Consumer Safety Officer. HR at 1:10:00 (testimony of the appellant).

Most importantly, the consulting job did not require her to drive because she flew

to India and had an assigned driver while there. Id.

¶38 With regard to the Christmas tree farm, the administrative judge relie d on a

December 2017 assessment completed by one of the appellant’s treating LCSWs,

stating, “she lives on a farm and does sell Christmas trees,” and the fact that the

appellant’s email address for the appeal contain ed the name of the farm, to

implicitly find that she was not disabled from working. ID at 12; IAF, Tab 1 at 1,

Tab 15 at 43. However, there is nothing in the record regarding the appellant’s

alleged involvement with this business and, on review, the appellant clarifies

without contradiction that her fiancé handles that business. PFR File, Tab 1

at 13. Therefore, we find that the appellant’s employment after her resignation

does not undermine the evidence that she was unable to work in her Consumer

Safety Officer position.

The appellant met her burden to prove that her conditions were expected to last

for at least 1 year from her May 2019 application for a disability retirement

annuity.

¶39 The administrative judge did not make a determination as to whether the

appellant met her burden to prove that her medical conditions were expected to

last for at least 1 year from her application for disability retirement. The parties

19

also do not address this issue on review. As discussed above, this is an element

of her burden. Thorne, 105 M.S.P.R. 171, ¶ 5.

¶40 Here, the appellant testified that her myoclonus is permanent, she has not

driven since 2018, and she no longer has a valid driver’s license due to her

myoclonic jerks. 7 HR at 12:20, 35:00 (testimony of the appellant). Also, in

September 2020, over a year after submitting her May 6, 2019 application, her

neurologist certified that her myoclonus and the associated symptoms are

expected to continue for a year. IAF, Tab 15 at 24. Similarly, on the appellant’s

FMLA request, her LCSW certified that she would be unable to work from

January 2018 through January 2019 due to her psychological conditions, which

the appellant testified were still present as of the hearing in October 2020. Id.

at 33; HR at 34:00 (testimony of the appellant). Thus, we find that the appellant

has proven that her conditions are expected to last for at least 1 year from her

application.

We disagree with the administrative judge that the appellant failed to meet her

burden to prove that accommodation of her conditions was unreasonable .

¶41 On review, the appellant argues that the administrative judge erred in

essentially finding that the appellant failed to establish that she could not be

accommodated because she resigned before the reasonable accommodation

process had been completed. PFR File, Tab 1 at 8-9; ID at 9-10. We agree with

the appellant.

¶42 An appellant must establish that she cannot be accommodated in her current

position and is not qualified for reassignment to a vacant position at the same

7

The administrative judge questioned whether the appellant failed to renew her license

or whether it was taken away by the state. ID at 12 & n.9. She suggested that if the

appellant failed to renew it after it expired, her lack of a license was not caused by her

medical conditions. Id. We are not persuaded that whether the appellant or the state

initiated her license loss is relevant to whether she lost it due to her myoclonus.

Therefore, we do not rely on this distinction here.

20

grade or level in which she could render useful and efficient service. 8 Pettye v.

Office of Personnel Management, 83 M.S.P.R. 260, ¶ 6 (1999); 5 C.F.R.

§ 844.103(a)(4). “[A]ccommodation requires adjustments that allow an employee

to continue to perform her official position.” Gooden v. Office of Personnel

Management, 471 F.3d 1275, 1279 (Fed. Cir. 2006) (citing, among other

authorities, 5 C.F.R. § 844.102 (“Accommodation means a reasonable adjustment

made to an employee’s job or work environment that enables the employee to

perform the duties of the position.”)). The Federal Circuit has held that “a

‘light-duty’ assignment which does not involve the critical or essential elements

of an employee’s official position cannot be considered an ‘accommodation.’”

Id.

¶43 As discussed above, the appellant’s position required significant driving .

On February 26, 2018, the appellant’s neurologist provided medical

documentation in support of the appellant’s request to work from home “due to

limitations on driving for long periods of time.” IAF, Tab 15 at 25. The

appellant sought reasonable accommodation later that month, requesting full -time

telework. IAF, Tab 18 at 4, 36. The agency did not offer the appellant

reasonable accommodation while she was employed. IAF, Tab 4 at 79, Tab 18

at 36. On May 7, 2018, the appellant resigned, and therefore the agency closed

her accommodation request file. IAF, Tab 4 at 74-46, Tab 18 at 36; HR at 42:00

(testimony of the appellant). However, on May 1, 2018, a labor relations

specialist advised the appellant’s supervisor that “the [reasonable accommodation

request] in of itself seems almost improper since [the agency’s equal employment

opportunity] office has information about this employee not being able to perform

all the essential functions of her position.” IAF, Tab 18 at 113 (emphasis added).

8

The agency did not offer the appellant reassignment. IAF, Tab 18 at 35. Therefore,

we agree with the administrative judge she met to this element of her burden to prove

eligibility for a disability retirement annuity. ID at 9-10; Thorne, 105 M.S.P.R. 171,

¶ 5.

21

¶44 When an agency certification that accommodation is unavailable is

unrebutted and the record supports the conclusion that accommodation would not

be possible, the Board has held that this criterion for obtaining disability

retirement is met. Chavez v. Office of Personnel Management, 111 M.S.P.R. 69,

¶ 15 (2009). Here, in describing the reasonable accommodation efforts made by

the FDA, the appellant’s supervisor observed, in essence, that the appellant’s

medical conditions prevented her from “perform[ing] the functions of her job as

described in her position description.” IAF, Tab 18 at 34, 36. Based on the

FDA’s unrebutted belief that the appellant could not be provided with a

reasonable accommodation to perform her duties and the evidence of record that

the appellant could not drive as required for her job, we find that the appellant

met her burden to prove that she could not be reasonably accommodated in her

position of record.

¶45 Accordingly, we REVERSE the administrative judge’s initial decision and

OPM’s reconsideration decision.

ORDER

¶46 We ORDER OPM to award the appellant disability retirement. OPM must

complete this action no later than 20 days after the date of this decision.

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

believes it has fully carried out the Board’s Order and to describe 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).

¶48 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

22

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).

¶49 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.

§ 1201.113(c)).

NOTICE OF APPEAL RIGHTS 9

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable t ime

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U .S.

Court of Appeals for the Federal Circuit, which must be received by the court

9

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

23

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. I f so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

24

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

25

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 10 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

10

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

26

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.