Opinion

Martha Robles v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
Apr 3, 2024
Status
Unpublished
Cited by
0 cases

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

3

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

4

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

5

(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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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