Filed: Jan. 07, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ATEF S. GERGAWY, DOCKET NUMBER Appellant, SF-844E-13-1821-I-1 v. OFFICE OF PERSONNEL DATE: January 7, 2015 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Robert R. McGill, Esquire, Walkersville, Maryland, for the appellant. Linnette Scott, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ATEF S. GERGAWY, DOCKET NUMBER Appellant, SF-844E-13-1821-I-1 v. OFFICE OF PERSONNEL DATE: January 7, 2015 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Robert R. McGill, Esquire, Walkersville, Maryland, for the appellant. Linnette Scott, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATEF S. GERGAWY, DOCKET NUMBER
Appellant, SF-844E-13-1821-I-1
v.
OFFICE OF PERSONNEL DATE: January 7, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert R. McGill, Esquire, Walkersville, Maryland, for the appellant.
Linnette Scott, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision
denying his application for a Federal Employees’ Retirement System (FERS)
disability retirement annuity. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, and based on the following points and authorities, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant worked for the Department of the Army as an Assistant
Professor teaching a foreign language. Initial Appeal File (IAF), Tab 4 at 78,
86. He was removed from his position effective November 23, 2011, for conduct
unbecoming a federal employee, including resisting his arrest at work by local
police on domestic violence charges in April 2011, and pleading nolo contendere
to the felony of assault with a deadly weapon in July 2011. Id. at 75-78. On
December 15, 2011, the appellant applied for FERS disability retirement,
claiming a disability arising from bipolar disorder. Id. at 44, 49, 104-07. In both
its initial and reconsideration decisions, OPM denied the appellant’s application.
Id. at 7-10, 43-48.
¶3 The appellant timely filed this appeal. IAF, Tab 1. After holding a telephonic
hearing, the administrative judge affirmed OPM’s reconsideration decision.
IAF, Tab 12, Initial Decision (ID). The appellant has submitted a timely
3
petition for review, to which the agency has responded. Petition for Review
(PFR) File, Tabs 1, 3. O n r e v i e w , t he appellant has provided a previously
unavailable determination by the Social Security Administration (SSA), granting
him disability benefits. PFR File, Tab 4. Based on this submission, we sent an
order to the parties, which instructed the appellant to file evidence and argument
in support of his assertion that he is entitled to disability retirement benefits.
PFR File, Tab 6 at 1-2. In addition, we instructed OPM to file medical data or
other evidence of the appellant’s disability provided to them by SSA. Id. at 2.
Both parties have responded. PFR File, Tabs 9-10.
The administrative judge correctly found that the appellant is not entitled to a
disability retirement annuity.
¶4 The appellant argued below that he was medically disabled from performing
the essential elements of his job and that no accommodations were or are possible
with respect to his medical disabilities, which he described as primarily bipolar
disorder “with attendant symptomatologies.” IAF, Tab 6 at 4-5. On petition for
review, the appellant argues that the administrative judge erred in finding that he
failed to meet his burden to prove (1) his bipolar disorder caused the misconduct
that led to his removal, and (2) that the condition is incompatible with either
useful and efficient service or retention in his position. PFR File, Tab 1 at 5-8;
ID at 11-13. He asserts, in this regard, that the administrative judge should have
credited the testimony and medical documentation from his personal psychiatrist.
PFR File, Tab 1 at 8-9.
¶5 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(a)(2). To be eligible for a disability retirement
annuity, an employee must show the following: (1) he completed at least 18
months of creditable civilian service; (2) while employed in a position subject
to FERS, he became disabled because of a medical condition, resulting in a
4
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; 2 (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) he did not
decline a reasonable offer of reassignment to a vacant position.
Christopherson, 119 M.S.P.R. 635, ¶ 6; see 5 U.S.C. § 8451(a); 5 C.F.R. §
844.103(a). The administrative judge found that the appellant failed to meet
element (2) of this test. 3 See ID at 12-13. We agree.
The appellant has not shown that he had a deficiency in performance,
conduct, or attendance caused by bipolar disorder.
¶6 An appellant can establish that his medical condition caused a deficiency in
performance, attendance, or conduct by showing that it affected 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. We agree with the administrative judge that the appellant did not show that
2
As the appellant argues, he need only prove one of these two alternatives under
element (2). See PFR File, Tab 1 at 8 (arguing this point); see also Henderson v. Office
of Personnel Management, 117 M.S.P.R. 313, ¶ 16 (2012) (explaining this requirement
in the context of the Civil Service Retirement System); accord Jackson v. Office of
Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012) (applying this same rule to
disability retirements under FERS).
3
The administrative judge found, and we agree, that the appellant met element (1) of
this test, the 18-month service requirement for a disability annuity. ID at 3. The
appellant’s service computation date is March 29, 1999, and he was removed on
November 23, 2011. IAF, Tab 4 at 78. We do not address elements (3), (4), or (5) of
the test, because we find, as discussed below, that the appellant does not meet element
(2).
5
his bipolar disorder caused the misconduct through July 2011 that ultimately led
to his removal. 4 ID at 12.
¶7 The appellant must show that his condition caused his misconduct. See
Johnson v. Office of Personnel Management, 87 M.S.P.R. 192, ¶ 19 (2000)
(finding that an appellant did not show entitlement to a disability annuity where
there was no evidence that his disability caused the alleged misconduct); Peterson
v. Office of Personnel Management, 81 M.S.P.R. 211, ¶ 5 (1999) (the appellant
established that he was entitled to disability retirement where the evidence
showed that his severe mental condition included delusions that caused him to be
a danger to himself or others). Removal for misconduct does not preclude an
individual’s receipt of disability retirement benefits if he can show that he was
disabled prior to the effective date of his removal. Henderson v. Office of
Personnel Management, 109 M.S.P.R. 529, ¶ 9 (2008). However, an appellant’s
application for disability retirement in the face of an impending removal for
misconduct may cast doubt upon the veracity of his application. Id.
¶8 A determination regarding entitlement to disability retirement benefits must
consider objective clinical findings, diagnoses and medical opinions, subjective
evidence of pain and disability, evidence relating to the effect of the applicant’s
condition on his ability to perform in the grade or class of position last occupied,
and evidence that the applicant was not qualified for reassignment to a vacant
position at the same grade or level as the position he last occupied. Nash v.
Office of Personnel Management, 92 M.S.P.R. 527, ¶ 7 (2002).
¶9 Student evaluations, dated March 22, 2011, reflect a decline in the appellant’s
ratings. IAF, Tab 4 at 25, 28-30. For example, one student reported that he
frequently made inappropriate comments, while another commented that his
4
On review, the appellant does not dispute the administrative judge’s finding that his
attendance and performance were acceptable. PFR File, Tab 1 at 6-7; ID at 9-11. He
continues to assert, as he did below, that his bipolar disorder caused his poor behavior
and conduct. PFR File, Tab 1 at 5-8; ID at 7.
6
“emotions or moods [a]ffect the way he teaches.” Id. at 29-30. Subsequently, the
appellant’s employing agency issued a notice of warning on March 30, 2011, due
to “student reported gender-related comments.” Id. at 76. On April 8, 2011, the
agency issued a letter of reprimand for “disrespectful, unsafe behavior toward a
female supervisor and disregard for established policies and procedures.” Id.
The agency indefinitely suspended the appellant on May 20, 2011, due to his
arrest at work. Id.
¶10 The appellant’s personal psychiatrist, who began treating him in October 2008
opined that the appellant was permanently disabled beginning in May 2011
despite treatment and could no longer perform his work duties. Hearing Compact
Disk (HCD). He also expressed the opinion that the domestic violence charge
that led to the appellant’s arrest at work was related to the appellant’s bipolar
disorder because this condition caused his irritability and anger. Id. According
to the doctor, the appellant’s anger was “fairly well controlled,” but, in 2011, it
was “out of control for a while.” Id. The appellant similarly testified that, in
2010, his symptoms increased and he had incidences with supervisors and
students. Id. He stated that he could not handle the stress of interacting with
others at work. Id. However, the appellant and his psychiatrist did not explain
how or why the condition allegedly worsened in 2010 or 2011. Further, the
psychiatrist’s testimony appears to suggest that the appellant’s condition
stabilized subsequent to adjustments with his medication.
¶11 The appellant’s incidences of prior discipline and decline in student ratings
alone do not meet his burden of showing that his bipolar disorder caused the
misconduct through July 2011 for which he was removed. Cf. Hardy v. Office of
Personnel Management, 98 M.S.P.R. 323, ¶ 15 (2005) (although the appellant’s
former supervisor mentioned the appellant’s extended absences that led to her
removal, without an explanation regarding how the appellant’s medical condition
affected her attendance, absence alone cannot establish disability). Further, the
appellant has not shown why his longstanding mental condition suddenly
7
deteriorated in May 2011. See Wall v. Office of Personnel
Management, 116 M.S.P.R. 188, 195 (2010) (finding that the appellant did not
establish disability because, among other reasons, neither the appellant nor a
nurse practitioner explained the sudden deterioration of his condition), aff’d, 417
F. App’x 952 (Fed. Cir. 2011). In light of the lack of evidence of causation, the
absence of an explanation for the appellant’s worsening condition, and the fact
that his claim of disability arose only after he was removed, we find that the
appellant has not proven that his condition resulted in his misconduct.
The appellant has not shown that his condition is incompatible with either
useful and efficient service or retention in his previous position.
¶12 The appellant argues that, in finding that he failed to show that his condition
was incompatible with rendering service in his position, the administrative judge
failed to give proper weight to the medical evidence. See PFR File, Tab 1 at 7-9;
ID at 11-12. We disagree.
¶13 An appellant can show that his medical condition is incompatible with useful
and efficient service or retention in the position by showing that it is inconsistent
with working in general, working in a particular line of work, or working in a
particular type of setting. Henderson, 117 M.S.P.R. 313, ¶ 16. In determining
whether this burden is met, the Board looks at 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 his ability to
perform. Id. The ultimate question, based on all relevant evidence, is: Do the
employee’s medical impairments preclude him from rendering useful and
efficient service in his position? Id. ¶ 20.
¶14 Although the appellant’s psychiatrist claimed that the appellant was disabled
beginning in May 2011, his medical reports also suggested that the appellant’s
condition could be controlled, undermining a finding of disability. See
Johnson, 87 M.S.P.R. 192, ¶ 21 (a disability annuitant claimant must establish the
extent to which his disability can or cannot be controlled). As the administrative
8
judge indicated, in a letter dated May 23, 2011, the doctor noted that subsequent
to increasing the appellant’s medication, he became “much calmer and he is in
good control of his emotions.” IAF, Tab 4 at 54; ID at 10. Further, in a
treatment note dated June 14, 2011, around one month after the appellant
allegedly became disabled, the psychiatrist indicated that the appellant was
“doing pretty well.” IAF, Tab 4 at 67. Moreover, he noted in a mental
impairment questionnaire that the appellant was “fairly well stabilized” and
merely needed “continuing treatment for the rest of his life.” Id. at 36.
¶15 The appellant’s psychiatrist testified that he could not work in any capacity.
HCD. Further, he identified the appellant’s functional limitations in the mental
impairment questionnaire mentioned above. IAF, Tab 4 at 36-41. He noted that
the appellant had severe mood swings and poor concentration and memory. Id. at
38. However, his opinions appear to be based on the appellant’s subjective
evidence and thus are not persuasive. See Johnson, 87 M.S.P.R. 192, ¶ 17
(finding that the testimony of a psychiatrist was unpersuasive because it was
largely based on the appellant’s own description of his symptoms as well as other
doctors’ reports); cf. Christopherson, 119 M.S.P.R. 635, ¶ 13 (noting that an
employee’s subjective evidence of disability is entitled to consideration and
weight in a disability retirement case when it is supported by competent medical
evidence). Therefore, the evidence from the appellant’s psychiatrist does not
establish the effect of his bipolar disorder on his ability to work in general, in a
particular line of work, or in a particular setting, and thus does not establish
disability. The appellant testified that he was unable to work at any job because
of the stress of working with others. See HCD. We give little weight to this
testimony because it was stated only in general terms, without any specific
information concerning how the appellant’s symptoms affected his ability to
work.
¶16 The appellant argues that the administrative judge erred by ignoring the
medical evidence from his personal psychiatrist without finding that he did not
9
use established diagnostic criteria, per Vanieken-Ryals v. Office of Personnel
Management, 508 F.3d 1034 (Fed. Cir. 2007). PFR File, Tab 1 at 8-9. Pursuant
to Vanieken-Ryals, OPM and the Board may give limited weight to medical
evidence “in the face of factors such as doubts about professional competence,
contrary medical evidence, failure of the professional to consider relevant factors,
lack of particularity in relating diagnosis to nature and extent of disability, etc.”
508 F.3d at 1042. In the instant case, we find that the administrative judge
correctly weighed the evidence to find that the appellant did not establish by
preponderant evidence that he was entitled to disability retirement. 5 See ID at
3-13.
The SSA determination alone is not sufficient to warrant an outcome different
from that set forth in the initial decision.
¶17 SSA found the appellant disabled since May 3, 2011, due to bipolar disorder.
PFR File, Tab 4 at 13. The appellant argues that this determination establishes
that he is entitled to a disability retirement annuity. See PFR File, Tab 4 at 5, Tab
9 at 5-6. We disagree.
¶18 Under the Board’s regulations at 5 C.F.R. § 1201.115(d), the Board may grant
a petition for review based on new and material evidence that, despite due
diligence, was not available when the record below closed. In the instant case,
the SSA determination was issued after the initial decision was rendered; thus it
is new evidence. 6
5
The instant case is distinguishable from Detwiler v. Office of Personnel Management
because the record does not contain ample evidence to prove that the appellant’s bipolar
disorder affects his ability to form insights and to reason properly. See 90 M.S.P.R. 77,
¶¶ 7-12 (2001) (ordering OPM to approve an appellant’s disability retirement
application in light of specific evidence that the appellant’s medical condition caused
him to hoard materials, including materials from work, and behave inappropriately by,
inter alia, urinating on customers’ lawns, and he was declared incompetent).
6
In the initial decision, the administrative judge noted that the appellant testified that
he was denied disability benefits from SSA but was appealing the initial SSA
determination. ID at 7 n.6.
10
¶19 However, we find that the SSA decision is not material. To be material, the
new evidence must be of sufficient weight to warrant an outcome different from
that of the administrative judge. Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980). While not dispositive, an SSA determination awarding social
security benefits is relevant evidence to be considered by the Board and OPM in
disability retirement cases if the conditions underlying both applications are the
same.7 Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶ 6
(2009). In the instant case, SSA identified bipolar disorder as the basis of the
appellant’s disability. PFR File, Tab 4 at 12-13.
¶20 If SSA cites to medical documentation in its determination, underlying its
decision to award benefits, which was not submitted to the Board, it is in the
interest of justice to allow the appellant to submit the evidence to the Board on
remand for consideration of entitlement to disability retirement benefits. See
Gardner v. Office of Personnel Management, 91 M.S.P.R. 391, ¶ 8 (2002). In the
instant case, the SSA decision referenced evidence which was not submitted to
the Board, including the testimony of an impartial medical expert, and “the
examining and reviewing agency opinions.” PFR File, Tab 4 at 10-13.
According to the administrative law judge, the medical expert found the personal
psychiatrist’s opinion to be more persuasive than the examining and reviewing
agency opinions. Id. at 13. The administrative law judge based his determination
in part on the medical expert’s opinion. Id. Therefore, we issued an order to the
parties to submit medical documentation underlying the SSA determination. PFR
File, Tab 6. The only new documentation submitted by the appellant was his
function report for his SSA application, which he completed. PFR File, Tab 9 at
8-25. OPM responded that it had no additional documentation. PFR File, Tab 10
at 3.
7
An SSA determination is not binding on the Board because it is based on different
laws and regulations. Wilmot v. Office of Personnel Management, 35 M.S.P.R. 238,
240 (1987).
11
¶21 We find that the SSA determination does not warrant a different outcome from
the initial decision. Although the SSA determination is based on the same
underlying condition, we nonetheless agree with the administrative judge that the
inadequacy of the medical evidence to prove that the appellant was unable to
perform the essential functions of his position outweighs the SSA determination.
See Guthrie v. Office of Personnel Management, 105 M.S.P.R. 530, ¶5 (2007).
NOTICE TO THE APPELLAND REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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
12
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
