Filed: May 06, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRENDA L. THOMAS, DOCKET NUMBER Appellant, DE-844E-15-0524-I-1 v. OFFICE OF PERSONNEL DATE: May 6, 2016 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Brenda L. Thomas, Litchfield Park, Arizona, pro se. Thomas Styer, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The Office of Personnel Management (OPM) has filed a petition for review of the initial decision, which r
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRENDA L. THOMAS, DOCKET NUMBER Appellant, DE-844E-15-0524-I-1 v. OFFICE OF PERSONNEL DATE: May 6, 2016 MANAGEMENT, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Brenda L. Thomas, Litchfield Park, Arizona, pro se. Thomas Styer, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The Office of Personnel Management (OPM) has filed a petition for review of the initial decision, which re..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDA L. THOMAS, DOCKET NUMBER
Appellant, DE-844E-15-0524-I-1
v.
OFFICE OF PERSONNEL DATE: May 6, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brenda L. Thomas, Litchfield Park, Arizona, pro se.
Thomas Styer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision denying the
appellant’s application for disability retirement benefits under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
this one only 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).
BACKGROUND
¶2 On or about March 15, 2014, the appellant, a GS-7 Immigration Services
Assistant, submitted an application for disability retirement benefits under FERS
to her employing agency, the Department of Homeland Security (DHS). Initial
Appeal File (IAF), Tab 6 at 83-84. On her application, the appellant stated that
she became disabled for her position in November 2013 due to fibromyalgia
because she could not sit for more than 15 to 30 minutes at a time, could not walk
or stand for “very long,” and her arms and wrists sometimes became weak,
affecting her ability to lift items. Id. at 83. After completing its portions of the
disability retirement application, the agency forwarded the application package to
OPM. Id. at 83-91.
¶3 On June 10, 2015, OPM denied the appellant’s disability retirement
application, finding that the evidence did not establish that her medical condition
prevented her from performing her duties or that reasonable accommodation was
not possible. Id. at 76-78. The appellant requested reconsideration of OPM’s
3
initial decision and provided additional medical documentation. Id. at 8-75. In a
July 23, 2015 reconsideration decision, OPM affirmed its initial decision. Id.
at 4-6.
¶4 The appellant timely appealed the reconsideration decision to the Board and
requested a hearing, which she subsequently waived. IAF, Tabs 1, 9. In an initial
decision based on the written record, the administrative judge reversed OPM’s
reconsideration decision, finding that the appellant had shown by preponderant
evidence that she was entitled to disability retirement benefits. IAF, Tab 12,
Initial Decision (ID). OPM has filed a timely petition for review of the initial
decision, and the appellant has responded in opposition to OPM’s petition for
review. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An employee bears the burden of proving by preponderant evidence her
entitlement to disability retirement. Christopherson v. Office of Personnel
Management, 119 M.S.P.R. 635, ¶ 6 (2013); 5 C.F.R. § 1201.56(b)(2)(ii). To
qualify for disability retirement benefits under FERS, an employee must show
that: (1) she has 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 medical condition is 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 is unreasonable; and
(5) she 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; 5 C.F.R.
§ 844.103(a).
4
¶6 The administrative judge found that the appellant timely filed her FERS
disability retirement application, had completed at least 18 months of creditable
civilian service, and had not declined a reasonable offer of reassignment to a
vacant position. ID at 4. The administrative judge further found that the
appellant had shown that she suffered from fibromyalgia, which rendered her
incapable of useful and efficient service, and that her disabling condition was
likely to last for more than 1 year. ID at 3-6. In addition, the administrative
judge found that the appellant had shown that her medical condition could not be
reasonably accommodated. ID at 6-7.
¶7 The parties do not dispute that the appellant has completed at least
18 months of creditable civilian service or that she has not declined a reasonable
offer of reassignment, and we discern no basis for disturbing these findings on
review. PFR File, Tabs 1, 3. Therefore, the only remaining issues in this appeal
relate to the appellant’s medical condition and its effects on her ability to perform
in her position, i.e., eligibility criteria (2), (3), and (4). For the following
reasons, we agree with the administrative judge that the appellant has met these
criteria and has shown that she is entitled to a disability retirement.
The administrative judge correctly found that the appellant has shown by
preponderant evidence that she cannot render useful and efficient service in her
position and that her disabling condition is likely to last for at least 1 year.
¶8 As noted above, an applicant for disability retirement under FERS must
show, among other things, 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).
An applicant may satisfy this statutory requirement in one of two ways; 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) (articulating this standard in the
context of an application for disability retirement under the Civil Service
5
Retirement System); see Jackson v. Office of Personnel
Management, 118 M.S.P.R. 6, ¶ 7 (2012) (applying the holding in Henderson to
disability retirement cases under FERS); see also 5 U.S.C. §
8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2). Under the first method, an applicant
may establish her entitlement to a disability annuity by showing that the medical
condition affected her ability to perform specific work requirements, prevented
her from being regular in attendance, or caused her to act inappropriately.
Jackson, 118 M.S.P.R. 6, ¶ 8. Under the second method, she may show that the
medical condition is inconsistent with working in general, in a particular line of
work, or in a particular setting. Id. It is not necessary, however, that the medical
evidence unambiguously and without contradiction shows how the medical
condition affects specific job duties or indicates that the employee cannot meet
the requirements of her position to establish entitlement to disability retirement
benefits. Id. Rather, an employee establishes her entitlement to disability
retirement benefits if, considering the totality of the evidence, it is more likely
true than untrue that the employee’s medical impairments preclude her from
rendering useful and efficient service in her position. See id.
¶9 A determination of disability must be based on the probative value of all the
evidence, including: objective clinical findings; diagnoses and medical opinions;
subjective evidence of pain and disability; and all evidence relating to the effect
of the employee’s condition on her ability to perform in the position she last
occupied. Henderson v. Office of Personnel Management, 109 M.S.P.R. 529,
¶ 12 (2008). “OPM must consider all of an applicant’s competent medical
evidence, and 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 v. Office of Personnel
Management, 508 F.3d 1034, 1041 (Fed. Cir. 2007).
6
¶10 Here, the record includes a number of medical records from
November 2013—the date the appellant claims she became disabled for work—
through the present describing her subjective symptoms and limitations, as she
reported them to the medical professionals, and their diagnoses of fibromyalgia. 2
IAF, Tab 6 at 83. Specifically, the record contains: (1) November 5 and
November 19, 2013 treatment records by Dr. C.G., a physical medicine and
rehabilitation physician, noting that, although the appellant’s workplace injuries
were resolving, she had developed “widespread diffuse myofascial-like myalgias
with multiple areas of bilateral tenderness noted along with complaints of fatigue
and tiredness” and opining that fibromyalgia “may be a significant contributing
factor to her continued complaints and continued more migratory complaints,”
id. at 10, 69-71; (2) November 26, 2013, February 26, 2014, March 14, 2014, and
April 8, 2014 treatment records by Dr. R.S., a rheumatologist, stating that: the
appellant complained of pain, fatigue, and sleeplessness and that her presentation
was consistent with fibromyalgia; she could not sit for long periods of time due to
her fibromyalgia; and she had not tolerated the prescribed pain medication,
including Lyrica, which made her too sleepy, id. at 103-08, 111; (3) February 10,
March 17, and December 10, 2014 records by Dr. A.S., the appellant’s primary
care physician, stating that the appellant was diagnosed with fibromyalgia, she
needed to get up every 30 minutes at work due to her back pain, and she had not
tolerated several prescribed medications, id. at 72-73, 100-02, 110; (4) March 17
and April 11, 2014 reports by C.E., a nurse practitioner, stating that the appellant
presented with back and shoulder pain and that she was unable to sit for an
extended period of time, id. at 94-98, 112; and (5) a November 10, 2015 treatment
record from a pain management clinic stating that: the appellant presented with
fibromyalgia; experienced constant widespread and regional pain, sinus problems,
2
The record additionally contains medical records from September through
November 19, 2013, regarding the appellant’s treatment and physical therapy for
injuries sustained from workplace falls on August 29 and October 8, 2013. IAF, Tab 6
at 10-71.
7
headache, fatigue, joint swelling, muscle cramps, gait difficulties, anxiety, and
depression; and she had been referred to physical therapy for pain relief, IAF,
Tab 10 at 2-4. The record also contains a contrary report; namely, a June 16,
2014 medical evaluation for the Arizona Department of Economic Security,
Disability Determination Services, stating, among other things, that the
appellant’s “fibromyalgia testing was negative.” IAF, Tab 11 at 11-13.
¶11 The record additionally contains several medical opinions regarding the
appellant’s fibromyalgia and her ability to perform her duties. In particular,
Dr. A.S. completed a physical residual functional capacity questionnaire dated
December 10, 2014, stating that the appellant was unable to work due to pain,
which worsened with prolonged sitting or standing and with increased stress, and
drowsiness caused by her medication. IAF, Tab 6 at 72-73. Dr. A.S. explained
that the appellant’s impairments have lasted or could be expected to last at least
12 months and stated that the appellant was not a malingerer. Id. at 72. Dr. A.S.
further stated that the appellant’s experience of pain and other symptoms was
“frequently” severe enough to interfere with the attention and concentration
required to perform simple work tasks. Id. at 73. In a September 23, 2015 note,
Dr. A.S. stated again that the appellant was unable to work due to her
fibromyalgia, explaining that the appellant could not use a computer due to her
right wrist pain, which worsened with prolonged use, and could not sit for more
than 15 minutes at a time due to her neck and back pain and swelling. IAF, Tab 8
at 3. The record contains a contrary medical opinion by Dr. D.C. recommending
that the appellant’s application for disability retirement be denied because, upon
review of the available medical documentation, the record did not support a
finding that the appellant’s impairment due to musculoskeletal conditions was
8
severe enough to result in occupational disability for her sedentary job. 3 IAF,
Tab 6 at 92.
¶12 As to subjective evidence of pain and disability, the record contains written
statements from the appellant and her mother, both dated September 24, 2015.
IAF, Tab 8 at 4-5. In the appellant’s written statement, she explained that: she
cannot sit for longer than 15 minutes at a time before her upper and lower back
start to swell and she is in “excruciating pain”; she cannot spend more than 30
minutes in a grocery store because her lower back and hips start to hurt; her right
forearm and wrist are constantly swollen and she sometimes has “no strength” in
her right hand; her body is stiff and it is difficult to walk for the first moments
after she stands up; her right toes are stiff and it is painful to straighten them; the
bottom of her right foot is sometimes very tender; her left knee is sometimes
swollen, making it difficult to walk; she needs to take a break after 15 minutes of
housework because her lower back and hips start to hurt; and she spends most of
the day lying down. Id. at 5. She also stated that she takes Lyrica at night for
pain, which allows her to sleep through the night, but its effects leave her
“non-functioning throughout the next day.” Id. The appellant’s mother explained
that: the appellant’s daily activities are “very limited”; she spends most of the
day lying around; she cannot go shopping anymore because she is “in pain and it
hurts her to walk, sit or stand too long because her joints swell and hurt”; and she
is “always stressed and depressed” and “is just a shell of herself, of what her life
was before her falls.” Id. at 4.
¶13 As to other evidence showing the effect of the appellant’s condition on her
ability to perform in her position, the record contains: (1) a position description
indicating that the appellant’s duties include, among other things, assisting in the
processing and adjudication of immigration applications and petitions by
“conducting security checks, supporting Immigration Services Officers, managing
3
Although the date of Dr. D.C.’s medical opinion is partially illegible, it appears to be
dated January 23, 2015. IAF, Tab 6 at 92.
9
correspondence, maintaining customer support, processing documents and fees,
and performing analysis on files, reports, and information systems or databases,”
IAF, Tab 6 at 113-14; (2) a performance plan and appraisal for 2013, id. at 115-
29; and (3) the appellant’s supervisor’s statement indicating that the appellant’s
attendance had been deficient since January 2014 and that it was impossible to
assign the appellant any duties because the appellant “never knows if she will
have the ability to perform them due to constant pain” or if she will be in “so
much pain that it makes it impossible for her to report for duty,” id. at 85-86.
¶14 On the basis of this record, the administrative judge determined that the
appellant met her burden of establishing that, while employed at DHS, she
suffered from a disabling medical condition that was incompatible with useful
and efficient service or retention in her position. ID at 4-6. Specifically, the
administrative judge found that: the appellant was disabled due to fibromyalgia
because she could not sit or stand for more than 15 minutes at a time; the
prescribed medication interfered with her ability to maintain a clear mind, as
required to complete her assigned tasks; and her medical condition prevented her
from being in regular attendance. ID at 5-7. The administrative judge rejected
OPM’s arguments below that the appellant had been noncompliant with treatment,
explaining that, although one treatment record noted concern with the appellant’s
efforts in April 2014, medical records showed that therapy efforts were ongoing
and that any concerns about the appellant’s efforts appear to have been satisfied
by the appellant’s later conduct. ID at 6; IAF, Tab 6 at 94. Additionally, the
administrative judge found that the appellant met her burden of showing that her
disabling condition was expected to continue for at least 1 year from the date of
her application for disability retirement. ID at 4-5. We agree, and, for the
reasons discussed below, we find that OPM’s contentions on review do not
provide any basis to disturb these findings.
¶15 On review, OPM argues that the administrative judge erred in finding that
the appellant was entitled to disability retirement because the medical evidence
10
did not “unambiguously and without contradiction” indicate that she could not
perform the duties or meet the requirements of her position. PFR File, Tab 1 at 6.
Specifically, according to OPM, the June 16, 2014 Arizona Disability
Determination Services evaluation, which indicates that the appellant tested
negative for fibromyalgia, and the January 23, 2015 medical opinion by Dr. D.C.,
which found that the medical evidence did not support a finding of disability,
establish contradiction and ambiguity and “render the case less than
preponderant.” PFR File, Tab 1 at 6-7; see IAF, Tab 6 at 92, Tab 11 at 11-13.
¶16 As stated above, however, it is not necessary that the medical evidence
unambiguously and without contradiction show how the medical condition affects
specific job duties or indicate that the employee cannot meet the requirements of
her position to establish entitlement to disability retirement benefits.
Henderson, 117 M.S.P.R. 313, ¶¶ 16, 18. Moreover, the administrative judge
considered the contrary evidence—specifically, the June 14, 2014 evaluation for
the Arizona Disability Determination Services stating that “Fibromyalgia testing
was negative” and other medical reports, most of which were from 2013—and
concluded that they were outweighed by the other evidence of record. ID at 4-5;
IAF, Tab 6 at 5, Tab 11 at 11-13. Although the administrative judge did not
discuss the January 23, 2015 medical opinion, 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. Diggs v. Department of Housing & Urban
Development, 114 M.S.P.R. 464, ¶ 8 (2010). In any event, we agree with the
administrative judge that the record evidence showing that the appellant’s
fibromyalgia precludes her from rendering useful and efficient service in her
position outweighs the contrary evidence cited by OPM.
¶17 In assessing the probative weight of medical opinion, the Board considers
whether the opinion was based on a medical examination, whether the opinion
provided a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
11
and duration of the expert’s familiarity with the treatment of the appellant. Slater
v. Department of Homeland Security, 108 M.S.P.R. 419, ¶ 15 (2008). Here, the
June 16, 2014 evaluation by the Arizona Disability Determination Services is
based on a one-time examination by Dr. B.B. IAF, Tab 11 at 11-13. In addition,
the evaluation provides no explanation for its statement that “Fibromyalgia
testing was negative,” failing to even identify what test Dr. B.B. administered to
the appellant or what diagnostic criteria he considered. 4 Id. at 13. Likewise,
there is no indication that Dr. D.C. examined the appellant prior to rendering the
January 23, 2015 medical opinion or that he had any familiarity with the
treatment of the appellant; rather, he appears to have merely reviewed some of the
appellant’s medical records to make a recommendation on her application for
disability retirement. IAF, Tab 6 at 92. On the other hand, as discussed above,
Dr. C.G., Dr. A.S., Nurse C.E., and Dr. R.S. had ongoing treatment relationships
with the appellant, their findings were based on medical examinations of the
appellant, and their opinions and treatment records contained detailed
descriptions of the appellant’s presentation and subjective complaints. IAF, Tab
6 at 10, 69-73, 93-112, Tab 8 at 3. Accordingly, we find that the diagnoses and
medical opinions by Dr. C.G., Dr. A.S., Nurse C.E., and Dr. R.S. are entitled to
more weight than the June 16, 2014 evaluation and the January 23, 2015 opinion.
See Slater, 108 M.S.P.R. 419, ¶ 15. We thus find no merit to OPM’s assertion
these two reports outweigh the other medical evidence or “render the case less
than preponderant.” PFR File, Tab 1 at 6-7.
4
We take notice of the fact that, while there are currently no diagnostic laboratory tests
for fibromyalgia, the American College of Rheumatology has established criteria for a
diagnosis of fibromyalgia, which includes a history of widespread pain lasting more
than 3 months and other general physical symptoms such as fatigue, waking
unrefreshed, and cognitive (memory or thought) problems. Questions and Answers
about Fibromyalgia–How is Fibromyalgia Diagnosed?, National Institute of Arthritis
and Musculoskeletal and Skin Diseases (July 2014),
http://www.niams.nih.gov/health_info/fibromyalgia; 5 C.F.R. § 1201.64 (stating that
official notice may be taken of matters that can be verified).
12
¶18 OPM further argues that the administrative judge erred by relying on the
September 23, 2015 statement by Dr. A.S. and the November 10, 2015 treatment
record from the pain management clinic on the grounds that they are conclusory
and fail to explain how the appellant is prevented from performing her job tasks
or unable to work at any job, in a particular line of work, or in her work setting.
Id. at 4-6. As stated above, however, medical evidence showing how a medical
condition affects specific job duties or indicating that an appellant cannot meet
the requirements of her position is not required to prove entitlement to disability
retirement benefits. Henderson, 117 M.S.P.R. 313, ¶ 18. Moreover, we disagree
with OPM’s contention that these records are conclusory. The September 23,
2015 letter from Dr. A.S., which states that the appellant has fibromyalgia and is
unable to work, provides a reasoned explanation for this conclusion; specifically,
Dr. A.S. explained that the appellant cannot sit for more than 15 minutes at a time
due to her neck and back pain and swelling and cannot use a computer due to
right wrist pain, which worsens with prolonged use. IAF, Tab 8 at 3. The
November 10, 2015 treatment record states that the appellant presented with
fibromyalgia, describes her symptoms, lists her prescribed medications, and states
that she has been referred to physical therapy. IAF, Tab 10 at 2-5. We discern no
conclusory medical opinion in this report, and the administrative judge did not
rely on it for any such opinion. Id.; ID at 5. Rather, the administrative judge
cited this report because it lent support to the September 23, 2015 letter from
Dr. A.S. and confirmed, based on the doctor’s observation, the appellant’s
complaints of pain and weakness. ID at 5. The administrative judge also
mentioned that this treatment record was important because it noted that the
appellant was taking Lyrica and that she had been referred to physical therapy.
Id. Moreover, we reject OPM’s argument to the extent its premise is that these
reports’ diagnosis of fibromyalgia are based on the appellant’s self-reported
symptoms. IAF, Tab 10 at 2. Furthermore, qualified medical opinions based on
an appellant’s self-reported symptoms are probative of disability, especially
13
where, as here, they are corroborated by the record. See Vanieken-Ryals,
508 F.3d at 1040-44.
¶19 OPM further argues that the administrative judge erred by affording great
weight to the written statements by the appellant and her mother because the
record “clearly lacks competent medical evidence to support and corroborate
those written statements.” PFR File, Tab 1 at 6. As discussed above, however,
the appellant’s pain, weakness, fatigue, inability to sit or stand for more than
15 minutes at a time, intolerance of pain medication, and drowsiness associated
with Lyrica are well supported by the medical evidence of record. 5 Where, as
here, subjective evidence, such as testimony or written statements, regarding an
appellant’s symptoms is uncontradicted in the record, it “may be entitled to great
weight on the matter of disability.” Vanieken-Ryals, 508 F.3d at 1041 (quoting
Chavez v. Office of Personnel Management, 6 M.S.P.R. 404, 422 (1981)). Thus,
we find that the administrative judge properly afforded significant weight to the
written statements provided by the appellant and her mother. IAF, Tab 8 at 4-5.
¶20 We discern no other basis for disturbing the administrative judge’s findings
that the appellant met her burden of establishing that she suffered from a
disabling medical condition that was incompatible with useful and efficient
service or retention in her position and that her disabling condition is expected to
last at least 1 year from the date of her disability retirement application. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings where she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
5
In addition to the medical evidence supporting the appellant’s subjective complaints,
we take notice of the fact that her statements regarding her pain, fatigue, and muscle
weakness are consistent with the characteristic symptoms of fibromyalgia. See
Stedman’s Medical Dictionary 725 (Lippincott Williams & Wilkens 28th ed. 2006);
5 C.F.R. § 1201.64. We also take notice of the fact that sleepiness and difficulty
concentrating are common side effects of Lyrica. See Medication Guide, Lyrica, U.S.
Food and Drug Administration, http://www.fda.gov/downloads/Drugs/
DrugSafety/UCM152825.pdf (last visited Mar. 21, 2016); 5 C.F.R. § 1201.64.
14
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987) (same).
The administrative judge correctly found that the appellant’s disabling condition
could not be reasonably accommodated.
¶21 Under FERS, an individual is not eligible for disability retirement benefits
if there is a reasonable accommodation for the disabling condition in the position
held. 5 U.S.C. § 8451(a); Confer v. Office of Personnel
Management, 111 M.S.P.R. 419, ¶ 29 (2009); 5 C.F.R. § 844.103(a)(4). Here, the
employing agency indicated that the appellant had been offered, but declined,
several reasonable accommodations, including relocation of her work station, a
work station that would allow her to alternate between sitting and standing
throughout the day, and an assignment to lighter duty tasks within her job
description. IAF, Tab 6 at 87. The administrative judge found, however, that the
appellant’s disabling condition could not be reasonably accommodated because:
her attendance had been unacceptable and was unlikely to improve; her pain
prevented her from sitting or standing for more than 15 minutes at a time and
alternating between them more frequently would be of little help; and her
prescribed medication interfered with her ability to maintain a clear mind, which
affected her ability to complete her assigned tasks. ID at 6-7.
¶22 On review, OPM argues that the administrative judge erred in finding that
the appellant could not be reasonably accommodated because: “1) there is no
documentary medical or other evidence showing [the offered accommodations]
were unreasonable, and/or 2) she made no attempt to perform the accommodated
duties showing they were unreasonable.” PFR File, Tab 1 at 7. The relevant
regulations, however, provide only that, to receive a disability annuity, an
individual must show that “[a]ccommodation of the disabling medical condition
in the position held must be unreasonable.” 5 C.F.R. § 844.103(a)(4). We find
no support in the relevant statutes, regulations, or case law for OPM’s assertion
that an applicant for disability retirement benefits must attempt to perform her
15
duties with an accommodation to demonstrate that the accommodation is
unreasonable. Further, there is no requirement that an appellant submit evidence
specifically showing that a given accommodation is unreasonable. See, e.g.,
Thomas v. Office of Personnel Management, 54 M.S.P.R. 686, 691 (1992)
(finding accommodation unreasonable by looking to the medical evidence and
comparing it to the job requirements).
¶23 Here, the appellant’s position description shows that a significant number of
her duties require her to use a computer to assist in the processing and
adjudication of immigration applications and petitions and to perform file
analysis and report preparation. IAF, Tab 6 at 114-15. Because the appellant
cannot sit or stand for more than 15 minutes at a time and cannot use a mouse
because of pain and swelling in her right wrist, she cannot perform her computer
duties for a full 8-hour workday even if she is allowed to alternate between sitting
and standing. Id.; see IAF, Tab 8 at 3. The appellant’s disability is compounded
by the fact that her prescribed medication, Lyrica, makes her drowsy and,
according to the appellant, “non-functioning” the day after she takes it. IAF,
Tab 6 at 114-15; see IAF, Tab 8 at 5. We agree with the administrative judge’s
finding that this side effect of the appellant’s medication would interfere to an
important degree with her assigned duties, which require a clear mind. ID at 7;
see IAF, Tab 6 at 114-15. Although the agency offered to accommodate the
appellant with lighter duties, we fail to see, and OPM has not explained, how
lighter duties would reasonably accommodate the appellant’s disability while still
allowing her to continue to perform the duties of her official position, most of
which require using a computer and having mental clarity. IAF, Tab 6 at 114-15;
see Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed. Cir.
2001) (explaining that a light-duty assignment does not constitute an
“accommodation” precluding eligibility for disability retirement under FERS if
the assignment does not allow the employee to perform the duties of her official
position). Furthermore, as the administrative judge correctly noted, the
16
appellant’s attendance has been deficient and is unlikely to improve with any of
the agency’s proffered reasonable accommodations. ID at 7. Given that the
appellant spends most of her day lying down and she can barely leave her house
or perform household chores due to her pain and fatigue, we find no basis to
disturb the administrative judge’s conclusion that her attendance will not improve
even if some sort of workplace accommodation were to be made.
¶24 Lastly, OPM argues that the administrative judge erred because he “failed
to consider” the agency’s certification that “[r]eassignment is not necessary
because [the] employee’s performance is fully successful and there are no
medical restrictions which keep the employee from performing critical duties or
attending work altogether.” PFR File, Tab 1 at 7. As noted above, an
administrative judge’s failure to mention all of the evidence of record, including
what the agency certified as to a possible reassignment, does not mean that he did
not consider it in reaching his decision. Diggs, 114 M.S.P.R. 464, ¶ 8. In any
event, we have considered OPM’s argument regarding the agency’s certification
that reassignment was not necessary and find that it provides no basis to disturb
the initial decision. IAF, Tab 6 at 88. As discussed above, the appellant has
shown by preponderant evidence that she is disabled for her position and that she
cannot be reasonably accommodated. We find that the agency’s conclusory
statement that reassignment is not necessary and that the appellant does not have
any medical restrictions that would prevent her from performing critical duties of
her position or from attending work altogether is not persuasive and does not
outweigh the other record evidence discussed above. See Francois v. Office of
Personnel Management, 64 M.S.P.R. 191, 195 (1994) (declining to afford weight
to the agency’s certification that reassignment was not necessary where “OPM
has not proffered any explanation for why it credited the administrative officer’s
conclusory statement and checking off a box on a preprinted form” over more
probative, detailed evidence).
17
ORDER
¶25 We ORDER OPM to grant the appellant’s application for disability
retirement. OPM must complete this action no later than 20 days after the date of
this decision.
¶26 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).
¶27 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
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).
¶28 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 TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
18
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
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
19
Circuit. 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.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
