NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PATRICK M. MCMORROW,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3169
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH844E100069-I-1.
___________________________
Decided: December 15, 2010
___________________________
PATRICK F. MCMORROW, Belmar, New Jersey, pro se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KENNETH M. DINTZER,
Assistant Director.
__________________________
MCMORROW v. OPM 2
Before DYK, PROST, and MOORE, Circuit Judges.
PER CURIAM.
Patrick McMorrow seeks review of a final decision of
the Merit Systems Protection Board (Board) affirming the
denial of his application for disability retirement annuity
benefits under the Federal Employees Retirement System
(FERS). For the reasons discussed below, we affirm.
BACKGROUND
On January 20, 2009, Mr. McMorrow submitted an
application to the Office of Personnel Management (OPM)
for disability retirement. Mr. McMorrow indicated that
from January 1999, he became disabled from performing
his duties as a Store Associate for the Department of
Defense, Defense Commissary Agency, in Fort Mon-
mouth, New Jersey. Mr. McMorrow stated that he suf-
fered from grand mal seizures, and he indicated that his
condition affected his attendance, conduct, and his ability
to do the duties of his job. J.A. 14.
In August 2009, OPM denied Mr. McMorrow’s appli-
cation. J.A. 66. OPM noted that Mr. McMorrow claimed
that he became disabled in January 1999, however, he
continued to work without accommodation. J.A. 65. OPM
noted that Mr. McMorrow was hospitalized in September
2008 for a seizure disorder and alcoholism, and the report
stated that he failed to take his seizure medication,
Dilantin. Id. OPM concluded that the evidence failed to
show that Mr. McMorrow’s seizure condition prevented
him from performing the essential duties of his position,
warranted his exclusion from the workplace, or caused
any of his misconduct. Id. at 65-66.
3 MCMORROW v. OPM
Mr. McMorrow requested reconsideration, and OPM
denied his request. Mr. McMorrow then appealed to the
Board. The Board first reviewed the medical evidence
submitted by Mr. McMorrow. The Board reviewed a June
2, 2008 letter submitted by Dr. Peeples opining that Mr.
McMorrow had “a long term history of seizure disorder
manifesting as generalized grand mal seizures at a fre-
quency of approximately four to five per year.” J.A. 3. The
Board noted that Mr. McMorrow had twenty-two office
visits with Dr. Peeples, and the records of those visits
indicate treatment for seizures, a rib fracture, a scalp
laceration, left shoulder injury, bronchitis, and chronic
obstructive pulmonary disorder. Id. The Board stated
that Mr. McMorrow had two hospitalizations. Id. at 4.
The first hospitalization followed a seizure at work, and
the hospital summary reflected chronic alcoholism and
noncompliance with medical advice, including failure to
take seizure medication. Id. The Board noted that the
summary also stated that Mr. McMorrow’s prescriptions
for seizure medication were discontinued because his
seizures were determined to be alcohol related. Id. The
Board explained that Mr. McMorrow’s second hospitaliza-
tion occurred after a fall and again reflected a history of
alcohol abuse and poor compliance with medical advice.
Id. The Board reviewed six medical incident reports
dated from January 2004 to January 2009, each reporting
that Mr. McMorrow had a seizure at work. Id. at 4-5.
The Board reviewed a September 24, 2009 letter submit-
ted by Dr. Peeples with Mr. McMorrow’s request for
reconsideration. In this letter, Dr. Peeples opined that
while alcohol exacerbated Mr. McMorrow’s condition, it
was not the primary cause of his disorder. Id. at 4. The
Board reviewed a discharge summary from Carrier Clinic,
which Mr. McMorrow submitted with his appeal to the
Board. Id. at 5. The Board noted that according to this
summary, Mr. McMorrow was admitted for four days
MCMORROW v. OPM 4
alcohol detoxification in May 2007, and he stayed for an
additional five days for rehabilitation. Id. The Board
reviewed a September 28, 2009 report from Dr. Richard S.
Rhee, a neurologist who treated Mr. McMorrow about two
weeks after a seizure. Id. The Board explained that Dr.
Rhee concluded that Mr. McMorrow’s seizure disorder
was “most likely a combination of idiopathic seizure
disorder triggered by alcohol withdrawal or alcohol stimu-
lating origin.” Id. Finally, the Board reviewed letters
submitted by Mr. McMorrow’s sister, one of which ex-
plained that he had been hospitalized twice in the previ-
ous two-week period for transient ischemic attacks. Id.
The Board next considered whether Mr. McMorrow’s
seizure disorder affected his work performance. The
Board noted that that Mr. McMorrow never claimed that
he was unable to work or explained how his seizure
condition affected his attendance, performance, or con-
duct. Id. at 5-6. The Board further noted that Dr.
Peeples did not report that Mr. McMorrow’s condition was
disabling or explain how it might prevent him from per-
forming his duties. Id. at 6. The Board noted that the
evidence showed that Mr. McMorrow’s seizures could be
controlled or eliminated if he abstained from alcohol
and/or took his medication. Id. The Board noted that Mr.
McMorrow used 297.75 hours of leave time from July
2008 to February 2009, however, the Board stated that no
evidence or argument was proffered relating those ab-
sences to his seizure disorder. Id. The Board stated that
Mr. McMorrow claimed he suffered from seizures for more
than ten years, yet he failed to explain how he was able to
work continuously for the commissary since 1998 despite
his condition. J.A. 7. The Board concluded that although
the record contained evidence that Mr. McMorrow had six
seizures at work, no evidence suggested that his seizures
affected his ability to perform his duties as a store associ-
5 MCMORROW v. OPM
ate. J.A. 6. The Board thus affirmed OPM’s decision
based on two alternative fact findings: first, that Mr.
McMorrow failed to prove that his seizures affected his
ability to do his job and second, that his seizures could be
controlled if he abstained from alcohol.
Mr. McMorrow sought review, and the Board denied
his request. Mr. McMorrow appealed to this court for
review. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
"[F]actual underpinnings of [OPM] disability deter-
minations may not be judicially reviewed, but review is
available to determine whether there has been a substan-
tial departure from important procedural rights, a mis-
construction of the governing legislation, or some like
error going to the heart of the administrative determina-
tion." Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791
(1985).
To qualify for disability benefits under FERS, an em-
ployee must show by a preponderance of the evidence that
he has completed at least eighteen months of “civilian
service” and is “unable, because of disease or injury, to
render useful and efficient service” in his current position
and does not qualify for accommodation or reassignment.
Trevan v. Off. Pers. Mgmt., 69 F.3d 520, 522 (Fed. Cir.
1995); 5 U.S.C. § 8451(a).
Mr. McMorrow argues that we should vacate and re-
mand because the Board refused to consider certain
evidence submitted after the Administrative Judge’s
initial decision February 17, 2010, but prior to Mr.
McMorrow’s petition for review to the Board. The evi-
MCMORROW v. OPM 6
dence is a letter from Mr. McMorrow’s doctor March 9,
2010, stating, among other things, that “Mr. McMorrow’s
seizures have not been controlled despite taking his
seizure medicine as prescribed,” and “that it is medically
dangerous for him to continue working.”
The Board must consider, on review, any new, previ-
ously unavailable evidence that is material. 5 C.F.R.
§ 1201.115(d)(1). Assuming that the letter from Mr.
McMorrow’s doctor was previously unavailable, it only
addresses one of the Board’s two, independent bases for
denying disability: whether Mr. McMorrow’s condition
affected his ability to do his job. The letter does not
address the other basis: whether Mr. McMorrow’s sei-
zures could be controlled if he abstained from alcohol.
Because Mr. McMorrow only submitted new evidence
addressing one of the Board’s two independent bases, the
Board did not err.
CONCLUSION
For the reasons discussed above, we affirm the
Board’s denial of Mr. McMorrow’s application for retire-
ment annuity benefits.
AFFIRMED
COSTS
No costs.