NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MAYBELL SMITH,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2009-3248
__________________________
Petition for review of the Merit Systems Protection
Board in DA831E080476-I-1.
__________________________
Decided: June 14, 2010
__________________________
SHEILA F. CAMPBELL, Sheila Campbell, P.A., of North
Little Rock, Arkansas, for petitioner.
CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director. Of counsel was PAUL ST.
SMITH v. OPM 2
HILLAIRE, Office of the General Counsel, Office of Person-
nel Management, of Washington, DC.
__________________________
Before NEWMAN, LINN, AND DYK, Circuit Judges.
PER CURIAM.
Petitioner Maybell Smith appeals a final order of the
Merit Systems Protection Board (“Board”), Maybell Smith
v. Office of Personnel Mgmt., No. DA-831E-08-0476-I-1
(M.S.P.B. June 25, 2009) (“Order”), making final the
administrative judge’s initial decision sustaining the
denial of her application for disability retirement under
the Civil Service Retirement System (“CSRS”) by the
Office of Personnel Management (“OPM”). Maybell Smith
v. Office of Personnel Mgmt., No. DA-831E-08-0476-I-1
(M.S.P.B. Mar. 13, 2009) (“Initial Decision”). We affirm.
Smith was a medical support assistant at the De-
partment of Veterans Affairs from June 7, 1999 to Octo-
ber 13, 2006, a role in which she performed various
clerical duties at the Central Arkansas Veterans Health-
care System. In early 2006, Smith began to use cocaine.
In March 2006, she entered a drug rehabilitation clinic,
but later withdrew after testing positive for cocaine. In
June 2006, Smith’s supervisor noted that her performance
had become unacceptable, and in July 2006, Smith was
suspended through August 10, 2006 for improper conduct.
On July 22, 2006, Smith was involved in a car accident
with a stationary object, in which drugs contributed to the
crash. Shortly thereafter, Smith applied for disability
under the CSRS. On October 13, 2006, Smith was re-
moved from her position for improper conduct. On August
9, 2007, the Social Security Administration (“SSA”) de-
termined that Smith met the requirements for disability
3 SMITH v. OPM
benefits on the basis of depression, substance abuse, and
degenerative disc disease, and noted that “we are unable
to establish your onset date as you have requested.
Therefore based upon all the available medical evidence,
we have established your onset date as 10/15/2006.” On
January 2, 2008, the OPM denied Smith’s request for
disability, and on June 23, 2008, Smith’s request for
reconsideration was denied. Smith appealed the Board,
which affirmed the OPM. Smith timely appealed to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
Our review of decisions of the Board is limited by
statute. We will overturn the Board only if the Board’s
decision is “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). When reviewing OPM
disability determinations, we are further restricted by 28
U.S.C. § 8347 to determining whether “there has been a
substantial departure from important procedural rights, a
misconstruction of the governing legislation, or some like
error going to the heart of the administrative determina-
tion.” Lindahl v. Office of Personnel Mgmt., 470 U.S. 768,
791 (1985). We may not review OPM’s factual determina-
tions. Id. at 779-80.
To be eligible for disability benefits, the applicant
must show by a preponderance of the evidence, see Dunn
v. Office of Personnel Mgmt., 60 M.S.P.R. 426, (M.S.P.B.
1994), 5 C.F.R. § 1201.56(a), that she was “unable, be-
cause of disease or injury, to render useful and efficient
service in the employee’s position.” 5 U.S.C. § 8337(a).
The Board determined that Smith was unable to meet
that burden for two reasons. First, though “[t]here is no
dispute that the appellant suffers from the medical condi-
tions cited in her application [for disability benefits],”
SMITH v. OPM 4
there was no evidence that Smith was unable to perform
her duties because of those disabilities. The closest
evidence, Dr. Lewis’s progress report, merely noted that
Smith herself said she could not work, and did not proffer
a medical diagnosis to that effect, and “none of the physi-
cians cited any laboratory or medical test results to de-
scribe or confirm what the appellant’s limitations or
restrictions are.” Initial Decision at 7.
The Board supported its conclusion as to the lack of
nexus between Smith’s disability and her inability to
work by noting that “the evidence must establish the
degree to which the pain can or cannot be controlled.” Id.
at 8 (citing Holland v. Office of Personnel Mgmt., 45
M.S.P.R. 645, 650-51 (1990)). Here, the Board found that
Smith did not produce evidence that she attempted and
failed to have her pain treated by methods other than
Oxycontin (which she could not take because of its addic-
tive characteristics). Id.
Smith contests the Board decision for three reasons.
First, she argues that the board failed to consider the
subjective evidence, contrary to our decision in Vanieken-
Ryals v. Office of Personnel Mgmt., 508 F.3d 1034 (Fed.
Cir. 2007). Second, she argues that the Board improperly
saddled her with the burden of proof, when it should have
been placed on the agency. Finally, she argues that SSA’s
determination of her eligibility for disability benefits
supports her claim for disability through the CSRS. None
of these arguments are persuasive.
As to her first argument, Smith put forth, and the
Board considered, the following evidence:
• January 2006 through December 2006 pro-
gress notes from Dr. Derek Lewis, one of
which noted that Smith said she was un-
able to return to work because of back pain
5 SMITH v. OPM
• A July 22, 2006 post-accident report by Dr.
Michael T. King, diagnosing Smith with:
“(1) no definite acute cervical spine injury;
(2) mild to moderate multilevel spondylosis;
and (3) a minimal anterolisthesis of C5 on
C6,” which was “most likely degenerative in
origin.”
• Smith’s application for disability retire-
ment, from July 29, 2006, claiming her in-
ability to perform her duties due to her
physical injuries, sleep disorder, congestive
heart failure, pain and the resultant irrita-
bility, and medication-induced sleepiness.
• Progress reports from July 29, 2006 to
January 18, 2008, indicating depression
and back pain, and noting prescribed medi-
cines for her condition.
• The aforementioned August 9, 2007 letter
from the SSA concluding that Smith was
eligible for disability benefits as of October
15, 2006.
• An August 20, 2007 letter from Dr. Kendall
L. Wilson, based on X-rays taken on August
8, 2007, noting that Smith had constant
pain in the spine, and diagnosed her with
“lumbar disc degeneration, cervical disc de-
generation, ligamentous instability, and
cervical and lumbar radiculitis.”
• Smith’s affidavit of January 8, 2009, setting
forth the responsibilities of her job, the
facts of her accident, her pain medicine ad-
diction, insomnia, “degenerative disc dis-
ease at C6-7 and arthritic changes in the
SMITH v. OPM 6
cervical spine,” and noted that she was in-
capacitated and unable to work because of
pain and depression.
Lacking from this list is anything like the medical
evidence put forth in Vanieken-Ryals, 508 F.3d 1034 (Fed.
Cir. 2007), on which Smith places her primary reliance.
Our decision in Vaniekan-Ryals required that OPM and
the Board consider “competent medical evidence,” even
where the doctors’ conclusions were based on the subjec-
tive observations of the doctor and the patient’s own
statements. That case did not hold that the applicant’s
own statements that she is unable to work, unsupported
by either objective or subjective medical evidence, are
sufficient to support eligibility for disability benefits.
Consistent with Vanieken-Ryals, the Board’s decision here
specifically noted that “an applicant may prevail based on
medical evidence that consists of a medical professional’s
conclusive diagnosis, even if based primarily on the
applicant’s own descriptions of symptoms and other
indicia of disability.” Initial Decision at 8. However, the
Board found that Smith failed to present any medical
evidence—again, subjective or objective—that her disabil-
ity prevented her from performing her job.
The Board also properly determined that Smith’s di-
agnosis of depression could be relevant, but again found
that “none of the physicians explained specifically how or
why the appellant’s psychological condition precluded her
from performing the duties of her position.” Id. The
Board’s proper statement and application of law and the
lack of any kind of medical evidence evincing Smith’s
disability-induced inability to perform her job convince us
that the Board has not committed legal error, but simply
weighed the evidence, and found Smith’s case lacking.
Because we may not reweigh the evidence, see Brenneman
7 SMITH v. OPM
v. Office of Personnel Mgmt., 439 F.3d 1325, 1327 (Fed.
Cir. 2006), we reject Smith’s first argument.
We also reject Smith’s second argument. Smith ar-
gues that where “the agency has already separated the
claimant from service because of disability,” there is an
“evidentiary presumption which serves to shift the burden
of coming forward to the government.” Smith’s Principle
Br. at 25. Smith relies on Bruner v. Office of Personnel
Mgmt., 996 F.2d 290, 293 (Fed. Cir. 1993), a case relating
to an employee’s separation from service because of
disability. However, Smith’s underlying factual premise,
that she separated from the service “because of disabil-
ity,” is unsupported by the record. The Board specifically
found that Smith’s physical or mental problems were not
the cause of her removal. Initial Decision at 7-8. As a
factual question, this is not subject to our review on
appeal. Lindahl, 470 U.S. at 791. As such, Bruner is
inapplicable, and the “general rule [] that the burden of
proving entitlement is upon the person who asserts that
he/she is disabled,” is preserved. Bruner, 996 F.2d at 292.
As for Smith’s final argument, while we agree with
Smith’s premise that the SSA decision that she is entitled
to SSA benefits may inform the Board’s decision, that
determination is not binding as to the CSRS determina-
tion. See Tevan v. Office of Personnel Mgmt., 69 F.3d 520,
526 (Fed. Cir. 1995). The Board took into account the
SSA determination, noting our decision in Trevan and the
fact that the SSA’s date of onset was after Smith’s separa-
tion from the Department of Veteran’s Affairs, and con-
cluded that such evidence was not persuasive in this case.
Initial Decision at 9. We are again precluded by our
standard of review from reweighing this determination.
Therefore the SSA decision is not a basis on which we can
reverse the Board’s determination.
SMITH v. OPM 8
For all of these reasons, the decision of the board is af-
firmed.
AFFIRMED
COSTS
No costs.