Filed: Jul. 18, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FELICIA A. JOHNSON, DOCKET NUMBER Appellant, DC-844E-16-0112-I-1 v. OFFICE OF PERSONNEL DATE: July 18, 2016 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Felicia A. Johnson, Fayetteville, North Carolina, pro se. Delores A. Saunders, 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 th
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FELICIA A. JOHNSON, DOCKET NUMBER Appellant, DC-844E-16-0112-I-1 v. OFFICE OF PERSONNEL DATE: July 18, 2016 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Felicia A. Johnson, Fayetteville, North Carolina, pro se. Delores A. Saunders, 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..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FELICIA A. JOHNSON, DOCKET NUMBER
Appellant, DC-844E-16-0112-I-1
v.
OFFICE OF PERSONNEL DATE: July 18, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Felicia A. Johnson, Fayetteville, North Carolina, pro se.
Delores A. Saunders, 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 by the Office of Personnel Management
(OPM) concerning her disability retirement annuity under the Federal Employees’
Retirement System (FERS). Generally, we grant petitions such as this one only
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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).
¶2 The appellant is a Medical Support Assistant for the Department of
Veterans Affairs. Initial Appeal File (IAF), Tab 5 at 36. In January 2015, she
submitted an application for disability retirement under FERS. Id. at 34-35. The
application cited a number of physical and mental impairments with symptoms
such as severe back pain and panic attacks. Id. at 34.
¶3 In September 2015, OPM denied the appellant’s application.
Id. at 28-32.
The appellant requested reconsideration, but OPM again found that the appellant
was not entitled to disability retirement. Id. at 4-8.
¶4 The appellant filed the instant appeal, contesting OPM’s reconsideration
decision. IAF, Tab 1. After permitting both parties to submit evidence, the
administrative judge affirmed OPM’s decision. 2 IAF, Tab 15, Initial
Decision (ID). The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. OPM has filed a response. PFR File, Tab 3.
2
The appellant did not request a hearing. IAF, Tab 1 at 2.
3
¶5 An individual bears the burden of proving her entitlement to disability
retirement by preponderant evidence. 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) she must have completed at least 18 months of
creditable civilian service; (2) she, 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)
she must not have declined a reasonable offer of reassignment to a vacant
position. 5 U.S.C. § 8451(a); Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R. §
844.103(a).
¶6 The administrative judge found that the appellant’s appeal failed because
she did not meet requirements 2-5. ID at 3-8. We agree.
¶7 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
(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 her ability to perform specific work requirements,
4
prevented her from being regular in attendance, or caused 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, working in a particular line of work, or
working in a particular type of setting. Id.
¶8 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 her ability to
perform the duties of her position. Id., ¶ 19. The ultimate question, based on all
relevant evidence, is whether the individual’s medical impairments preclude her
from rendering useful and efficient service in her 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.
¶9 On review, the appellant first argues that the administrative judge failed to
address medical documentation showing that she should not be in the workforce
due to her anxiety. PFR File, Tab 1 at 4. As an initial matter, we note that the
administrative judge thoroughly discussed the evidence in the initial decision, and
we see no error in any failure to mention every piece of evidence. Marques v.
Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984)
(recognizing that an administrative judge’s failure to mention all of the evidence
of record does not mean that he did not consider it in reaching his decision),
aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In addition, although the appellant
suggests that the voluminous record below contains some documentation showing
she should not be in the workforce, she failed to specify what evidence she is
referring to. PFR File, Tab 1 at 4; see Tines v. Department of the Air
Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must
contain sufficient specificity to enable the Board to ascertain whether there is a
serious evidentiary challenge justifying a complete review of the record); Weaver
v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (finding that, before the
5
Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect and identify the
specific evidence in the record which demonstrates the error). The appellant’s
initial pleading included documentation concerning a September 2015 reasonable
accommodation request. IAF, Tab 1 at 12-14. In it, a physician recommended
that the appellant be in an environment with little or no patient contact, fewer
employees, and limited noise due to her anxiety, panic attacks, and depression.
Id. at 14. The physician opined that the appellant would be able to excel with
that accommodation. Id. However, the appellant has not identified and we were
unable to locate any treatment records supporting the physician’s conclusions, nor
has she provided any argument or evidence concerning the agency’s response to
this requested accommodation.
¶10 The appellant also asserts that the administrative judge failed to address her
invocation of the Family and Medical Leave Act of 1993 (FMLA) to take leave
for depression and anxiety. PFR File, Tab 1 at 4. But again, the appellant failed
to identify any corresponding evidence. Moreover, as recognized above, the
administrative judge’s failure to mention every piece of evidence is not
dispositive. Marques, 22 M.S.P.R. at 132. Upon review, we were unable to
locate any evidence in the record to corroborate or further explain the appellant’s
assertion. The leave summary included in the record below covers a period
between October 2014 and February 2015, during which the appellant took
77 hours of annual leave, 9.5 hours of leave for family care, and 29 hours of sick
leave. IAF, Tab 4 at 189-91. The leave summary does not mention FMLA. Id.
At the end of the period, in February 2015, the appellant’s supervisor completed a
form in connection with the instant disability retirement application. IAF, Tab 5
at 37. In it, she indicated that the appellant’s attendance was acceptable and
denied that absences had any impact on work operations. Id.
¶11 The appellant lastly argues that her depression and anxiety affected her job
performance, despite any contrary conclusions from her supervisor, PFR File,
6
Tab 1 at 4, but once more, she failed to identify any supportive evidence. In
contrast, the record does include the appellant’s performance appraisal, dated just
a few months prior to her disability retirement application, showing that she
received a fully successful or exceptional rating for each performance element.
IAF, Tab 4 at 183-87. It also includes a notation from the appellant’s supervisor,
dated just after her disability retirement application, indicating that her
performance remained successful. IAF, Tab 5 at 37.
¶12 After considering each of the arguments discussed above, we discern no
basis for reversing the initial decision. The majority of the treatment records
before us are dated years before the appellant alleges that she became disabled,
and the more recent records suggest her condition is stable. See generally IAF,
Tab 4 at 4-144, Tab 5 at 40-707. For example, the most recent treatment record
we located, dated the month before the appellant’s disability retirement
application, lists a history of conditions such as dyslipidemia, hyperthyroidism,
depression, anxiety, back pain, allergies, and dry eyes. IAF, Tab 5 at 51. In
terms of her mental health, the record suggests her condition was stable with
prescribed medications, and without treatment from a mental health professional.
Id. at 55. Her depression screening was negative.
Id. at 57. The appellant’s
physician simply recommended, in terms of the appellant’s physical health, that
she better monitor her blood sugar for purposes of her diabetes. Id. at 49-52.
Although the physician offered to refer the appellant for a diabetic clinic consult,
the appellant refused. Id. at 51.
¶13 The administrative judge found that the available medical records reflect a
variety of medical conditions, but do not reflect that they are of a severity the
appellant has alleged. ID at 4-7. We agree. As a result, we find that the
appellant has not met her burden of proving that she is “unable, because of
disease or injury, to render useful and efficient service in [her]
position.” 5 U.S.C. § 8451(a)(1)(B).
7
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 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
8
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
