NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3068
STEVE M. KESSLER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Steve M. Kessler, of Wynnewood, Pennsylvania, pro se.
Anuj Vohra, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and
Kirk T. Manhardt, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3068
STEVE M. KESSLER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in
PH844E070230-I-1.
____________________________
DECIDED: December 5, 2008
____________________________
Before LOURIE, RADER, and LINN, Circuit Judges.
PER CURIAM.
DECISION
Steven M. Kessler appeals from the decision of the Merit Systems Protection
Board affirming the Office of Personnel Management’s denial of Kessler’s application for
Federal Employees’ Retirement System (“FERS”) disability retirement annuity benefits.
Kessler v. Office of Pers. Mgmt., PH-844E-07-0230-I-1 (M.S.P.B. May 24, 2007).
Because Kessler has not demonstrated that the Board abused its discretion or
otherwise committed legal error in its decision, we affirm.
BACKGROUND
Kessler was a staff psychiatrist with the Department of Veterans Affairs (“VA”) in
Philadelphia, PA. His supervisors at the VA became aware that Kessler was being
treated for depression and provided accommodation by reducing his work load and
schedule. Despite this accommodation, Kessler’s supervisor noted deficiencies in his
work and habitual tardiness beginning in November 2000. On November 19, 2002,
Kessler was placed on a ninety-day performance improvement plan (“PIP”). In
subsequent years, Kessler was twice placed on similar PIPs. On April 22, 2004, before
completion of the third PIP, Kessler tested positive for cocaine during a VA-
administered drug test. The VA removed him for illegal drug use effective December 4,
2004.
A grievance examiner concluded that, as of May 2, 2005, Kessler was not an
active cocaine user and recommended that Kessler be reinstated to his former position.
The VA did not take the advice of the grievance examiner and upheld Kessler’s
removal.
On December 3, 2005, Kessler filed for disability retirement, claiming that he
suffered from a wide range of diseases and conditions including severe depression,
attention deficit disorder (“ADD”), substance abuse disorder, obsessive compulsive
disorder (“OCD”), and sleep disorders. OPM denied that application by letter dated July
26, 2006. After Kessler’s timely request for reconsideration, OPM again denied his
request. Kessler timely appealed OPM’s reconsideration decision to the Board.
On May 24, 2007, the administrative judge (“AJ”) issued an initial decision
affirming OPM’s reconsideration decision. In arriving at his conclusion, the AJ
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evaluated the medical records and opinions of three doctors who had treated Kessler,
as well as the testimony of Kessler’s then current psychiatrist, Dr. Richard Limoges.
Limoges testified that Kessler was “unable to perform useful and efficient service as a
psychiatrist” because Kessler’s ADD and OCD precluded him from ever competently
handling matters necessary to his position. However, the AJ accorded little credence to
Dr. Limoges’s testimony because Dr. Limoges never explained how Kessler could both
be unable to perform the duties required of him and receive numerous satisfactory
reviews of his work. The AJ found Dr. Limoges’s testimony to be contrary to the weight
of the evidence because it ignored the “link between appellant’s active drug use and the
beginning of his significant performance deficiencies.” Kessler v. Office of Pers. Mgmt.,
at 8. Aside from the discounted testimony of Dr. Limoges, the AJ found no evidence,
testimonial or otherwise, demonstrating that Kessler was unable to work at the VA.
The AJ found that Kessler suffered from all of the medical conditions identified in
his initial request for disability. However, the AJ found that Kessler had failed to explain
how those conditions were disabling inasmuch as they affected his ability to do his job.
The AJ supported his conclusion by noting that Kessler’s two major depressive
episodes occurred years before Kessler applied for disability retirement. Furthermore,
the evidence demonstrated that while Kessler suffered from dysthymia, sleep disorders,
reflux disorder, irritable bowel syndrome, and hypertension, there was no evidence
(other than the discredited testimony of Dr. Limoges) demonstrating that these disorders
rendered Kessler unable to perform his duties as staff psychiatrist. Kessler’s cocaine
use, the AJ reasoned, was the “primary contributor to his performance deficiencies.”
Kessler v. Office of Pers. Mgmt., at 11.
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After Kessler appealed the AJ’s decision, the Board denied the petition for review
and the initial decision became final. Kessler v. Office Pers. Mgmt., PH-844E-07-0230-
I-1 (M.S.P.B. September 20, 2007). Kessler timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of
discretion, 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) (2008); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). We have limited review over factual
determinations of the Board, including whether Kessler was disabled within the meaning
of the FERS statute. Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 524 (Fed. Cir.
1995). Our review of disability claims is limited 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
question.” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985).
Kessler makes three main arguments on appeal. First, he argues that the AJ
erred by not applying the Mullins-Howard exception, which permits the Board to “link the
medical evidence to the job duties and requirements” when the medical evidence itself
fails to do so. Bynum v. Office of Pers. Mgmt, 89 M.S.P.R. 1 (2001). Second, he
argues that the AJ erred by failing to find a nexus between Kessler’s medical conditions
and his ability to perform his duties. To properly make such a demonstration, Kessler
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argues, the AJ is required to make finely-tuned correlations between Kessler’s medical
conditions and all of the essential elements of his position. Kessler claims that the AJ
failed to even identify the essential elements of his position. Third, Kessler argues that
substance abuse is not a per se disqualifying condition and that his cocaine addiction
should, in fact, be evidence of inability to perform his duties.
In response, the government argues that the Board properly considered the
evidence before it. The government claims that the burden of proof of nexus between
medical disability and performance of job duties falls on the applicant, not on OPM.
Further, the government claims that Kessler mischaracterizes the findings of the Board,
and that the Board never found that substance abuse cannot serve as a disabling
condition. Lastly, the government argues that the Mullins-Howard exception is
inapplicable in this case.
First and foremost, Kessler has not shown that in this case there has been a
substantial departure from important procedural rights, or an error that goes to the heart
of the administrative process. Even so, on the merits of Kessler’s arguments, we agree
with the government that the Board did not commit legal error in its decision. As a
preliminary matter, we find that the Mullins-Howard exception is inapplicable in this
case. The exception grants the Board authority to find a nexus between an applicant’s
medical condition and the ability to perform job duties in cases “that unambiguously and
without contradiction indicate[] that appellant cannot perform the duties or meet the
requirements of the position.” Bynum, 89 M.S.P.R. at 7. In this case, there was
significant evidence that contradicted Kessler’s claim that his medical condition
prevented him from performing his duties. The AJ noted that prior to his testing positive
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for cocaine, Kessler completed satisfactory performance reviews and two performance
improvement plans. Furthermore, there was a lack of agreement between Kessler’s
doctors as to whether his conditions rendered him incapable of performing his work-
related duties. The ambiguous and contradictory nature of the nexus evidence
therefore removes the Mullins-Howard exception from applicability in this case.
Next, we examine Kessler’s claim that the AJ erred by failing to perform a
complete review of the essential elements of his job and then correlating those
elements to the specific symptoms of his medical condition. The Board does not bear
the burden of establishing the elements of Kessler’s nexus claim; Kessler does. See
Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 522 (Fed. Cir. 1995). Furthermore, it is
apparent from the Board’s opinion that the AJ performed a thorough review of the
evidence. She examined Kessler’s extensive medical history and the opinions of the
four physicians, as well as the performance reviews and other evidence of Kessler’s
performance at work. An administrative judge is not required to enumerate the
“essential elements” of an applicant’s position and then correlate the psychiatric
conditions to each of those elements, as Kessler would urge us to hold. The AJ
performed a complete review of the evidence, and her factual findings do not represent
an error that goes to the heart of the administrative process.
Lastly, we consider Kessler’s claim that the AJ misapplied the law regarding the
effect of Kessler’s substance abuse on his disability benefits. Kessler cites Winslett v.
Office of Pers. Mgmt., 30 M.S.P.R. 293, 296-97 (1986), for the proposition that an
applicant for disability benefits claiming drug addiction as a disabling condition must
show that he is unable to maintain control of the addiction after receiving treatment.
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Contrary to the government’s repeated contention, it is clear that the AJ found that
Kessler’s drug use was the primary cause of his deteriorating work performance and
that the AJ did indeed find a connection between Kessler’s drug use and his work
performance. See Kessler at 8. (“The evidence establishes a link between applicant’s
active drug use and the beginning of his significant performance deficiencies.”). Despite
the government’s erroneous reading of the AJ’s decision, it is unclear how the holding in
Winslett benefits Kessler. Aside from not being binding precedent on this court,
Winslett does not advance Kessler’s appeal because it held that an applicant had failed
to demonstrate that he was physically disabled, partly resulting from his inability to
demonstrate that he could not maintain sobriety for at least a year. Winslett, 30
M.S.P.R. at 296-97. Kessler’s case is not one in which the length of the disabling
condition has not been established, but rather whether the condition is medically
disabling in the first place.
While there is evidence in the record to show that Kessler received treatment,
ultimately unsuccessfully, for his drug abuse, the AJ did not find that Kessler’s drug
abuse was a medical condition that would allow Kessler to receive disability benefits.
Indeed, of the numerous physicians who evaluated Kessler and who knew of his drug
problems, none classified his drug problems as a disabling medical condition. Many of
Kessler’s physicians encouraged him to return to work, indicating that they did not find
his condition disabling. The testimony of the doctor who believed Kessler to be
disabled, Dr. Limoges, was discredited by the AJ precisely because it “trivialized”
Kessler’s drug problems. Clearly, Limoges, and all the other physicians in this case, did
not consider Kessler’s drug problems to be “disabling medical conditions.” See 5 C.F.R.
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§ 844.102 (defining disabling as “unable or inability because of disease of injury to
render useful and efficient service in employee’s current position”). While drug use
obviously contributed to Kessler’s problems at work, it is clear that such use did not rise
to the level of a “disabling medical condition” when four medical professionals have
declined to characterize it as such.
Kessler has not demonstrated that the Board has substantially departed from
important procedural rights, misconstrued a governing regulation, or otherwise
committed an error that goes to the heart of the administrative process. Moreover,
Kessler has not shown that the Board abused its discretion or otherwise committed
legal error. Accordingly, we affirm the Board’s decision.
COSTS
No costs.
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