The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTHA L. ROBLES, DOCKET NUMBER
Appellant, NY-844E-22-0010-I-1
v.
OFFICE OF PERSONNEL DATE: April 3, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James D. Muirhead , Esquire, Hackensack, New Jersey, for the appellant.
Shaquita Stockes and Heather Dowie , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
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 GRANT the appellant’s petition for review, VACATE the initial decision,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
and REMAND the case to the field office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was employed as a Constituent Services Representative
for the U.S. House of Representatives until she was removed effective
August 31, 2019. Initial Appeal File (IAF), Tab 4 at 18, 133. She applied
for disability retirement at some point between January and February 2020.
Id. at 128-32. In her statement of disability, the appellant asserted that
she suffered from “severe stress, vasovagal syncope, depression, anxiety, panic
disorder, asthma, [a] peptic ulcer, and high blood pressure.” Id. at 81. On
July 23, 2020, OPM issued an initial decision denying the appellant’s application
for FERS disability retirement benefits after finding that she did not meet all the
criteria for disability retirement. Id. at 63-67. The appellant requested
reconsideration of the initial decision. Id. at 46-47. On October 6, 2021,
OPM issued a reconsideration decision sustaining its initial decision. Id. at 6-9.
The appellant filed an appeal with the Board challenging OPM’s final
decision and requesting a hearing. IAF, Tab 1 at 2, 8. Following a telephonic
hearing, the administrative judge issued an initial decision affirming OPM’s
reconsideration decision. IAF, Tab 14, Tab 18, Initial Decision (ID) at 1, 6.
The administrative judge found that the appellant failed to prove her entitlement
to disability retirement benefits by preponderant evidence. ID at 6. She reasoned
that “[the appellant] was treated for multiple conditions.. . .[but] [i]t was not
an inability to carry out the functions of [the Constituent Services Representative]
position that led to her removal.” Id.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response.
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DISCUSSION OF ARGUMENTS ON REVIEW
In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Christopherson v. Office of Personnel Management, 119 M.S.P.R. 635, ¶ 6
(2013); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement
annuity under FERS, an appellant must establish the following elements:
(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. Christopherson, 119 M.S.P.R. 635, ¶ 6; 5 C.F.R. § 844.103(a).
The Board has found that job-related stress resulting in physical and mental
ailments that prevent an employee from performing the duties necessary in her
job can warrant the granting of disability retirement. Smith v. Office of Personnel
Management, 100 M.S.P.R. 500, ¶ 5 (2005). An applicant may demonstrate
eligibility for disability retirement under FERS in one of two ways: (1) by
showing that the medical condition caused a deficiency in performance,
attendance, or conduct; or (2) by showing that the medical condition 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 (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
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the medical condition affects her ability to perform specific work requirements,
prevents her from being regular in attendance, or causes her 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, in a particular line of work, or in a
particular type of setting. Id. In determining an appellant’s entitlement to
disability retirement, the Board considers all pertinent evidence, including
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and evidence showing the effect of her condition on her
ability to perform the duties of her position. Id., ¶ 19. The ultimate question,
based on all relevant evidence, is whether the appellant’s medical impairments
preclude her from rendering useful and efficient service in her position. Id., ¶ 20.
On review, the appellant contends that the administrative judge failed to
consider her testimony and relevant subjective evidence that she became disabled
for her job as a Constituent Services Representative. PFR File, Tab 1 at 7-9.
We agree. In the initial decision, the administrative judge summarized some of
the relevant evidence and testimony and concluded that the appellant failed to
meet her burden of proof. ID at 3-5. However, the administrative judge failed to
provide any analysis of the evidence and testimony in support of her conclusion.
See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980)
(an initial decision must identify all material issues of fact and law, summarize
the evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests). Therefore, remand is appropriate.
Although not raised on review, the official record of the March 22, 2022
telephonic hearing has been lost due to a technical error and cannot be recovered.
PFR File, Tab 3. The Board has found that, when the verbatim hearing record
omits material evidence necessary to adjudicate an appeal, the evidence must be
taken again. Walker v. Office of Personnel Management, 52 M.S.P.R. 101, 104
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(1991). According to the appellant, “[she] testified at length about the problems
she was having at work,” including that she had multiple fainting episodes,
vertigo episodes, and visits to the hospital. PFR File, Tab 1 at 7. Without the
recording, the appellant’s argument that the administrative judge’s determination
failed to consider her testimony and subjective evidence is essentially
unreviewable. Thus, because the record contains material omissions of evidence
necessary for the just adjudication of the appeal, it must be remanded for
rehearing and a new initial decision. See Smith, 100 M.S.P.R. 500, ¶ 6; see also
Walker, 52 M.S.P.R. 101, 104.
ORDER
For the reasons discussed above, we remand this case to the New York
Field Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.