United States Court of Appeals for the Federal Circuit
2006-3260
PHYLLIS M. VANIEKEN-RYALS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
John S. Grady, Grady & Hampton LLC, of Dover, Delware, argued for petitioner.
Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
him on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson,
Director, and Bryant G. Snee, Assistant Director. Of counsel was Tara K. Hogan, Trial
Attorney.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2006-3260
PHYLLIS M. VANIEKEN-RYALS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: November 26, 2007
__________________________
Before MICHEL, Chief Judge, LOURIE and MOORE, Circuit Judges.
MICHEL, Chief Judge.
Phyllis M. Vanieken-Ryals appeals from a final decision of the Merit Systems
Protection Board ("MSPB") sustaining the denial of her application for disability
retirement benefits by the Office of Personnel Management ("OPM"). Vanieken-Ryals
v. Office of Pers. Mgmt., No. PH-831E-05-0450-I-1 (M.S.P.B. May 15, 2006). Because
OPM applied an erroneous legal standard in its assessment of evidence offered to
support Vanieken-Ryals' application, and the MSPB repeated that error, we vacate and
remand.
I. BACKGROUND
Vanieken-Ryals has been an employee of the Veterans Administration ("VA") for
nearly thirty years. In the several years prior to February 2004, she experienced
increasing discomfort and difficulties at her workplace and particularly with her
immediate supervisor, Barry Emerson. On February 23, 2004, Emerson instructed her
to switch offices to one near his. This prompted her to immediately apply for voluntary
early retirement. Emerson informed her the next day, February 24, 2004, that he was
recommending her application be denied. She did not return to work the next day, and
she has been absent from work ever since. The VA formally denied her early retirement
application on March 3, 2004. On June 25, 2004, she filed the application for disability
retirement at issue in this appeal. OPM denied that application on January 12, 2005.
After permitting Vanieken-Ryals to submit additional evidence, OPM reconsidered and
sustained its decision on May 9, 2005. Vanieken-Ryals appealed to the MSPB, and the
administrative judge ("AJ") sustained OPM's reconsideration decision. Vanieken-Ryals
v. Office of Pers. Mgmt., No. PH-831E-05-0450-I-1 (M.S.P.B. Nov. 14, 2005) ("AJ
Decision"). The MSPB denied Vanieken-Ryals' petition for rehearing on May 15, 2006,
thereby making the AJ's decision its final decision, which Vanieken-Ryals then timely
appealed to this court.
Vanieken-Ryals claims complete disability due to several alleged psychological
disorders, including major depression and anxiety disorder. The evidence she
submitted to OPM to support her claim consisted of her own statements in addition to
several letters, medical reports, and related documentation from her treating
psychologist, Dr. Nichols, and treating psychiatrist, Dr. Rummler. Before the MSPB,
Vanieken-Ryals additionally submitted testimony from herself and her husband, as well
as testimony from Dr. Nichols. OPM offered no medical evidence countering Dr.
Nichols' and Dr. Rummler's documents or testimony.
2006-3260 2
In her statements to OPM, Vanieken-Ryals alleged that the stresses of her job in
the months leading up to January 2004 resulted in, among other things, severe anxiety
and panic attacks, vomiting, and nausea. Pet. App. at 167-68. She also indicated that,
by January 2004, she "could no longer manage to drive [her]self to work," and that she
would experience "sheer panic when forced to leave the house." Id. She further
indicated that, after her meeting with her superior on February 24, 2004, she "suffered a
total mental meltdown." Id. at 169. She also described the symptoms she has
experienced since she stopped attending her job, such as "chest pains, heart
palpitations," nausea, irritability, inability to drive, "deep depressive moods," difficulty
with "simple basic hygiene" and "routine household chores" like laundry or cooking, and
general and severe fear and anxiety in dealings with people and/or places at all
connected or related to the VA. Id. at 169-71.
Her testimony before the MSPB was consistent with her statements to OPM; she
testified that the act of being driven to work by her husband would cause nausea and
vomiting, that leaving her house would trigger panic attacks, that she suffered from
depression, and that she had been prescribed multiple medications for her mental
conditions. Id. at 54, 59-61, 65, 73. Her husband, James Ryals, also testified before
the MSPB, corroborating his wife's testimony on her symptoms. Id. at 76-77, 79-81.
Dr. Nichols submitted a number of letters and medical reports dated from May
12, 2004, to February 8, 2005. She also submitted progress notes dated from as early
as March 15, 2004. In these documents, she consistently diagnosed Vanieken-Ryals
with generalized anxiety disorder, panic attack disorder without agoraphobia, and major
2006-3260 3
depression, all "Axis I" psychological disorders. 1 Id. at 149-50, 152-58. She described
in detail the symptoms reported by Vanieken-Ryals and her husband as well as those
she herself observed during treatment. Id. at 149, 152, 154. She indicated her opinion
that Vanieken-Ryals "is a reliable reporter of her situation." Id. at 152. She described
particular aspects of Vanieken-Ryals' condition that reflected specifically on her
capability to accomplish the tasks of her position; for example, Dr. Nichols wrote on
February 8, 2005, that Vanieken-Ryals "is unable to drive or be driven north or to set
foot in the VA building" and that merely receiving correspondence from the VA rendered
her "extremely anxious and depressed and unable to leave the couch for days." Id. at
149. Dr. Nichols also opined on Vanieken-Ryals' prognosis, reporting that aside from
small improvements in personal hygiene and like tasks, "her date of recovery, if she has
to return to work, is far in the future, if ever." Id. at 156. In mid-2004, Dr. Nichols did
indicate, without specifying, that "[p]rognosis is good" and that Vanieken-Ryals "is
making progress in therapy," but emphasized that she remained unfit to return to work.
Id. at 157-58. And Dr. Nichols' final report in February 2005 indicated that Vanieken-
Ryals "most likely will be unable to return to work at all" and that Dr. Nichols "does not
believe an accommodation is feasible." Id. at 149.
Dr. Nichols also gave oral testimony before the MSPB. She testified that she "did
see that [Vanieken-Ryals] had anxiety and depression," and that she directly observed
signs of mental illness such as having a "flat" affect and being "very fidgety." Id. at 30,
32, 36. She described particular episodes and manifestations of Vanieken-Ryals' panic
1
Dr. Nichols applied the current edition of the Diagnostic and Statistical
Manual of Mental Disorders ("DSM-IV"), a widely-accepted tool for psychological
diagnosis published by the American Psychiatric Association. "Axis I" disorders are
among the most severe of the disorders for which DSM-IV is used.
2006-3260 4
attacks and depression, and discussed the limited progress achieved by Vanieken-
Ryals' treatment, such as an improved ability to maintain personal hygiene. Id. at 30,
33-36. Dr. Nichols testified several times that she at no time felt that Vanieken-Ryals
was fit for work, and that Vanieken-Ryals "will not ever be able to return to the VA" and
likely "will never be able to return to [any] work, full time." Id. at 30, 34, 38. She also
testified that the standard diagnostic tool in the mental health field is DSM-IV, and that
she had used DSM-IV to diagnose Vanieken-Ryals. Id. at 36.
Dr. Rummler, whom Dr. Nichols indicated was prescribing Xanax and other
psychiatric medication, id. at 152-54, provided a brief letter dated March 25, 2005,
indicating that he had been treating Vanieken-Ryals since April 2004 and that he had
diagnosed her with major depression and anxiety disorder. Id. at 151. He further
indicated his opinion that "[d]ue to the intensity of symptoms attributable to work related
stress, it can also be stated with reasonable medical certainty that Mrs. Vanieken-Ryals
will be unable to return to her previous work at any time in the future." Id. He also
submitted notes of his treatment of Vanieken-Ryals from April 2004 through June 2005.
Id. at 135-42.
Both OPM and the MSPB gave no weight at all to Vanieken-Ryals' medical
evidence and then found that she had failed to prove her disability. The MSPB also
held that she had not "definitively exhausted" the possibility that the agency could
accommodate her alleged disability. AJ Decision at 16. This holding was largely based
on the MSPB's rejection of her medical evidence and its view that she had failed to
2006-3260 5
prove any disability beyond an inability to work with her particular supervisor. 2 The
record shows that Vanieken-Ryals was offered "temporary duty away from work area
and supervisor," which she turned down due to her medical condition. Id. at 9-10.
However, the record also indicates that the VA determined: "Reassignment is not
possible. There are no vacant positions at this agency, at the same grade or pay level
and tenure within the same commuting area, for which the employee meets minimum
qualification standards." Id. at 10.
II. DISCUSSION
A. Jurisdiction
As a threshold issue, we first address whether this court has jurisdiction to hear
Vanieken-Ryals' appeal due to 5 U.S.C. § 8347. While we have exclusive jurisdiction
over appeals from a final decision of the MSPB under 28 U.S.C. § 1295(a)(9), the scope
of review available regarding OPM disability determinations is restricted by § 8347 and
by the Supreme Court's decision in Lindahl v. Office of Pers. Mgmt., 470 U.S. 768
(1985). Under that statute as interpreted in Lindahl, factual determinations on
"questions of disability and dependency" are unreviewable by this or any other court.
See 5 U.S.C. § 8347; Lindahl, 470 U.S. at 779-80; Anthony v. Office of Pers. Mgmt., 58
F.3d 620, 625-26 (Fed. Cir. 1995).
The Court made clear, however, that issues of law regarding decisions on
disability applications are reviewable: "[Judicial] review is available to determine
whether there has been a substantial departure from important procedural rights, a
2
The AJ, however, noted in his decision that he was "aware that the
continuing position of both [Vanieken-Ryals] and Dr. Nichols is that [Vanieken-Ryals]
can not work again at all" and that were Dr. Nichols' conclusions correct, "a
reassignment could prove fruitless." AJ Decision at 16.
2006-3260 6
misconstruction of the governing legislation, or some like error going to the heart of the
administrative determination." Lindahl, 470 U.S. at 791 (quoting Scroggins v. United
States, 397 F.2d 295, 297 (Ct. Cl. 1968)) (internal quotations omitted). Thus we may
only address the critical legal errors, if any, committed by the MSPB in reviewing OPM's
decision. Vanieken-Ryals contends that both the MSPB and OPM committed an error
of law by entirely rejecting all of her medical evidence simply due to the absence of so-
called "objective" medical evidence, arguing that such a requirement is unlawful and not
supported by any statute, regulation, or precedent. The government argues that no
such requirement was imposed and that the MSPB (and OPM) simply found the medical
evidence insufficient to establish disability as a factual matter.
We conclude, however, that the MSPB's decision was indeed predicated on its
view that "objective" medical evidence is required to prove disability and that Vanieken-
Ryals had failed to meet this requirement, affirming and expressly approving of OPM's
holding to this effect. This is evident upon close examination of all three written
decisions in this case. In OPM's initial decision of January 12, 2005, the agency
criticized the evidence submitted by Vanieken-Ryals because "[a]part from [Vanieken-
Ryals'] subjective narrative, no other objective medical documentation was provided
supporting a history that may have contributed to [her] sudden mental demise." App. to
Resp. Br. at 31 (emphasis added). OPM then elaborated, criticizing the lack of
"documentation such as emergency room reports showing incidents of panic attack"
and "relevant psychiatric studies or test results." Id.
In its later May 9, 2005 reconsideration decision, OPM further expressed its view
that the critical defect in Vanieken-Ryals' evidence was the lack of so-called objective
2006-3260 7
medical documentation. OPM indicated it was giving no weight to Dr. Nichols' several
reports because "she provided no details concerning any mental status evaluation," and
"she does not provide copies of any formal cognitive testing." Pet. App. at 145. OPM
later repeated that the case file "contains no evidence of any formal cognitive or
neuropsychological testing," and also cited the lack of "any comprehensive physical
examinations" and "any current comprehensive mental status evaluations." Id. at 146.
The MSPB in turn enforced OPM's "objective" medical evidence requirement. In
his opinion, the AJ pointed to OPM's finding that Vanieken-Ryals had provided "little
objective medical evidence . . . to demonstrate that [she] is disabled." AJ Decision at 13
(emphasis added). He further noted that "OPM also points out that the bulk of the
evidence presented by [Vanieken-Ryals] is Dr. Nichol's [sic] reports of what [Vanieken-
Ryals] told her." Id. This latter point was relied on by the AJ in his own analysis, and he
remarked that "the evidence presented by Dr. Nichols is only as good as the information
given to her by [Vanieken-Ryals]." Id. Thus the AJ also concluded that Dr. Nichols'
reports were necessarily immaterial since they were "subjective" in that they were
primarily based on Dr. Nichols' assessment of Vanieken-Ryals' own account of her
symptoms and experiences. The AJ made this apparent when he declared that "[t]he
only evidence which supports [Vanieken-Ryals'] claim of disability is her protracted
absence form [sic] work," and emphasized that "the necessity of the absences is based
on purely subjective medical evidence, which are not supported by an [sic] objective
medical evidence." Id. at 17 (emphases added). Clearly, the AJ totally discounted any
probative value that Vanieken-Ryals' medical evidence might have to support her claim
of disability since the only evidence he credited was her attendance record (which he
2006-3260 8
then also rejected for being based on "purely subjective medical evidence"). His
treatment of the medical evidence was thus tantamount to exclusion; he "considered"
Dr. Nichols' and Dr. Rummler's evidence but only so far as deciding to disregard it as
not at all probative as to her disability. 3
The Supreme Court in Lindahl, by expressly rejecting that the MSPB and OPM
are not subject to any judicial review on any issue, indicated that the courts have a
limited but important role to play. Both to guard against the substantial errors of law and
resulting miscarriage of justice described in Scroggins, and to properly respect our
jurisdictional limitations on truly factual determinations, we must be discerning and
cannot be satisfied by opinions that invoke the trappings of factual analysis—e.g., by
vaguely describing broad swaths of evidence as "insufficient" or as failing to carry the
claimant's burden, or simply asserting that all record evidence was considered, all of
which the AJ and OPM did here—but, when read closely and carefully, reveal that
absolutely no weight was given to certain evidence solely because it can generally be
classified as "subjective" and not because of any specific identifiable defect. Giving little
weight to specific evidence because of its individual failings, such as the lack of
qualifications of the author of a particular medical report, is a factual analysis over which
we have no jurisdiction to review. Disqualification of evidence because of its type is an
3
Thus the AJ's conclusion that Vanieken-Ryals had failed to "adduce
sufficient probative medical evidence that the medical conditions from which she suffers
disables her from performing the duties of her position" does not truly evidence a factual
analysis since it is predicated on the view that none of Vanieken-Ryals' medical
evidence warranted any probative weight. See AJ Decision at 17. With this evidence
essentially excluded, she of course had not adduced sufficient, or indeed any, probative
medical evidence. OPM's conclusion, that the record "contains insufficient medical
documentation regarding the level of any medical impairment in context to [Vanieken-
Ryals'] ability to perform the duties and responsibilities of [her] job," is based on the
same premise and is similarly unconvincing. See Pet. App. at 147.
2006-3260 9
imposition of a legal standard because it inherently imposes a categorical requirement.
When the use of such a standard is dispositive of disability retirement claims, they go to
the heart of the administrative determination, and we are charged with resolving
whether the imposed standard and its inherent evidentiary requirement are lawful.
Therefore, we hold that our jurisdiction is established as to the issue of whether
the imposition of an objective medical evidence requirement by the MSPB (or OPM) in
disability retirement cases is lawful or "a substantial departure from important
procedural rights, a misconstruction of the governing legislation, or some like error
going to the heart of the administrative determination." 4 Scroggins, 397 F.2d at 297.
We now turn to this issue of law, which we review de novo, keeping in mind that the
MSPB decision sustaining OPM's actions may only be reversed if it is arbitrary or
capricious, or if it is contrary to law. 5 See 5 U.S.C. § 7703(c).
B. Objective Medical Evidence Requirement
It is telling that no authority whatsoever is cited by the MSPB or OPM, in any of
the three written decisions in this case, for the proposition that objective medical
evidence is required to prove disability. No statute or applicable regulation of which we
are aware imposes such a requirement. In fact, applicable law suggests the opposite
rule. OPM's regulations define the type of "medical documentation" required to
establish disability. Such evidence must come from "a licensed physician or other
4
We do not, however, review the MSPB's treatment of the non-medical
evidence, such as her performance evaluations and the testimony of her supervisor.
Both the MSPB and OPM seem to have considered and weighed this evidence. But
this does not bear on whether the MSPB or OPM effectively imposed an objective
medical evidence requirement.
5
While we may also reverse an MSPB decision if it is unsupported by
substantial evidence, our limited review of legal issues only in OPM disability cases
does not implicate the substantial evidence standard.
2006-3260 10
appropriate practitioner," it must "be justified according to established diagnostic
criteria," and it must "not be inconsistent with generally accepted professional
standards." 5 C.F.R. § 339.104; see 5 C.F.R. § 831.1202 (requiring medical evidence
submitted to support an application for disability retirement to conform to the
requirements of 5 C.F.R. § 339.104). There is no hint of any objective/subjective
distinction, and the regulation clearly indicates that any evidence—"subjective" or
otherwise—utilizing "established diagnostic criteria" and consistent with "generally
accepted professional standards" is eligible for consideration.
Moreover, the MSPB has even precedentially ruled squarely against an objective
evidence requirement. Chavez v. Office of Pers. Mgmt., 6 M.S.P.R. 404, 418-23 (1981)
("[The AJ] erred in assuming that appellant's claim for disability retirement benefits
could not be granted if it was not proven by objective medical evidence."). 6 While we
are not bound by the MSPB's precedent, we agree with and accept the Chavez holding
on this issue. OPM must consider all of an applicant's competent medical evidence,
and an applicant may prevail based on medical evidence that, as here, 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. See id.
at 423 ("Objective medical evidence, then, is but one of the elements of proof to be
considered, along with expert opinion evidence and subjective evidence of pain and
inability to work . . . .").
6
We note that the AJ cited and quoted from Chavez at the beginning of his
opinion, and thus his later disregard for one of its central holdings is very puzzling. An
AJ is, of course, bound by all precedents of the MSPB.
2006-3260 11
For example, in Craig v. Office of Pers. Mgmt., 92 M.S.P.R. 449, 454-55 (2002),
the MSPB held that the applicant satisfied her burden of proving her disability solely
with medical evidence from a psychiatric social worker along with her own testimony.
The social worker, a licensed mental health specialist, diagnosed her patient with
multiple mental disorders, including post-traumatic stress disorder and panic disorder.
Id. at 452. Much like in the instant case, the social worker's reports were solely based
on information she heard or observed during therapy sessions after the applicant had
already left the job that had precipitated her conditions. See id. Also like Dr. Nichols,
the social worker in Craig based her diagnosis on the guidelines in DSM-IV. Id. at 455.
There is no mention of any "objective" tests in Craig; rather, the medical evidence there
deemed highly probative was very similar to the medical evidence petitioner submitted
here. The MSPB's total disregard of this evidence due to a lack of "objective" tests thus
ignores its own precedents.
In addition, subjective evidence—i.e., testimony or written statements—regarding
symptoms that is submitted by the applicant "may be entitled to great weight on the
matter of disability, especially where such evidence is uncontradicted in the record."
Chavez, 6 M.S.P.R. at 418-422; see also Biscaha v. Office of Pers. Mgmt., 51 M.S.P.R.
304, 309 (1991) ("An appellant's subjective evidence of pain must be considered
seriously, where it is supported by competent medical evidence."). It stands to reason
that qualified medical opinions based on the same types of information must therefore
also be afforded at least comparable, if not greater, probative weight. While the ultimate
determination of whether the evidence has satisfied the applicant's burden of proof rests
first with OPM and then with the MSPB, we hold that it is legal error for either agency to
2006-3260 12
reject submitted medical evidence as entitled to no probative weight at all solely
because it lacks so-called "objective" measures such as laboratory tests.
The problem with a requirement of "objective" tests is particularly pronounced
when, as here, the alleged disability arises from purely psychological, as opposed to
physical, disorders. No laboratory tests or physical examinations exist, or are even
known to be possible, to diagnose some psychological disorders. See Chavez, 6
M.S.P.R. at 418. And the practice of psychologists often consists entirely of
professional assessment of patient-reported symptoms and experiences. Thus,
requiring objective medical evidence would often discriminate against those civil
servants who suffer from legitimate, disabling psychological disorders.
Here, Dr. Nichols submitted several reports in which she diagnosed Vanieken-
Ryals with severe psychiatric conditions, recounting the symptoms and experiences
reported by Vanieken-Ryals that formed the basis of her diagnosis. Inherent in these
reports is her professional opinion that Vanieken-Ryals' account of these symptoms is
credible, and that the symptoms reported are serious. Indeed, she stated explicitly that,
in her professional opinion, Vanieken-Ryals was a "reliable reporter of her situation."
Pet. App. at 152. And her professional opinion was supplemented and supported by the
opinion of a second medical professional, psychiatrist Dr. Rummler, who concurred with
Dr. Nichols' diagnosis and went further to prescribe medications, evidence of which was
submitted to OPM. In cases involving psychological disability, such evidence is typically
probative (though not necessarily dispositive). See, e.g., Craig, 92 M.S.P.R. at 454-55
(crediting similar medical opinion testimony from a psychiatric social worker).
2006-3260 13
While OPM and the MSPB may give only limited weight to seemingly strong
medical evidence such as this, it typically does so only 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. 7 See Thomas v. Office of Pers. Mgmt., 54 M.S.P.R.
686, 689-90 (1992) (comparing and weighing conflicting medical opinions on the basis
of qualifications and competence); Bridges v. Office of Pers. Mgmt., 21 M.S.P.R. 716,
719 (1984) (holding that the lack of contrary medical evidence lends weight to
applicant's evidence); see also Chavez, 6 M.S.P.R. at 423 (noting that "the
qualifications of the expert" and "the extent and duration of the expert's familiarity with
or treatment of the applicant's condition," among others, are important factors).
But here, OPM did not express any doubt as to the credentials or veracity of Dr.
Nichols or Dr. Rummler, and the only medical evidence as to whether Vanieken-Ryals
suffered from disabling psychological disorders were their reports and documentation. 8
7
Our decision in Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 526-27 (Fed.
Cir. 1995), is inapposite because in that case, we held that the MSPB and OPM did not
err by relying on a lack of objective medical evidence supporting a claim of disability
when "OPM has produced [objective] medical evidence [such as X-rays] that is
inconsistent with subjective claims of disability." There, the MSPB essentially held that
the applicant's lack of supporting objective medical evidence rendered his subjective
evidence less probative than the contrary objective evidence submitted by OPM. Such
a comparison, when subjective evidence is deemed to be less probative than contrary
objective evidence, is certainly factual in nature, but that is not the situation here where
the only medical evidence is the so-called "subjective" evidence submitted by Vanieken-
Ryals. And in Trevan, we acknowledged that "objective medical evidence is not the
only factor to be assessed in determining disability." Id. (citing Chavez, 6 M.S.P.R. at
419, 422).
8
Vanieken-Ryals also submitted written statements in which she described
her own symptoms and experiences such as, for example, her inability to maintain basic
hygiene and panic attacks preventing her leaving her home. Pet. App. at 171. She also
ultimately testified before the AJ on appeal to the MSPB, as did her husband who gave
2006-3260 14
OPM also did not make any findings that Dr. Nichols' or Dr. Rummler's reports did not
utilize "established diagnostic criteria" or were "inconsistent with generally accepted
professional standards." See 5 C.F.R. § 339.104. Nor were any such concerns raised
by the MSPB in its review. And when, as here, the medical evidence indicates physical
or mental incapacity so severe as to clearly establish an inability to perform the tasks of
any job—such as inability to leave home, drive, or accomplish even basic life tasks—the
medical evidence need not enumerate what specific job tasks are rendered unfeasible
by the disability. Mullins-Howard v. Office of Pers. Mgmt., 71 M.S.P.R. 619, 627 (1996)
(holding that a psychiatrist's assessment that his patient "was unable to leave her home,
see visitors, drive, and had great difficulty managing ordinary household tasks such as
cooking and doing laundry" was sufficient to establish an incapacity to perform the
duties of her job regardless of the specific tasks required). When weighing the
probative value of medical evidence involves such a comprehensive and fact-intensive
process, flatly refusing to consider such medical evidence simply for being "purely
subjective" is a critical legal error and, at least in a case like this, clearly prejudicial.
Here, it is clear that both OPM and the MSPB committed this legal error. As
already discussed, the decisions of both agencies included numerous statements
evidencing a belief that Vanieken-Ryals' medical evidence should be afforded no
supporting testimony. Neither OPM nor the MSPB gave any indication that she or her
husband was not a credible witness, and certainly no Hillen analysis was conducted.
See Hillen v. Dep't of the Army, 35 M.S.P.R. 453, 458 (1987). Nevertheless, OPM and
the MSPB dismissed Vanieken-Ryals' symptoms and psychological reactions to her job
as "situational," thus not serious or enduring enough to be disabling. While we have
grave doubts about this characterization of her experiences given that her testimony
was seemingly considered credible, we need not and do not address here whether
OPM committed an error of law "going to the heart of the administrative determination"
in its consideration of Vanieken-Ryals' own statements.
2006-3260 15
probative weight at all due to the lack of "objective" evidence such as "formal cognitive
testing." See, e.g., Pet. App. at 146. In addition, neither the MSPB nor OPM discussed
the content of Dr. Nichols' or Dr. Rummler's evidence in any meaningful way, which
further demonstrates that it was not properly considered. OPM, for example, resorted to
a laundry list of "objective" tests and documents that the medical evidence did not
contain rather than examining the evidence and evaluating what it did contain. See id.
This is precisely the type of "error going to the heart of the administrative
determination," if not a "substantial departure from important procedural rights," that the
Supreme Court charged this court to guard against. See Lindahl, 470 U.S. at 791.
Therefore, we hold that OPM's and the MSPB's adherence to such a rule,
unsupported in the law, was arbitrary, capricious, and contrary to law; thus this case
must be remanded for proper consideration of Vanieken-Ryals' medical and other
evidence. Further, since the MSPB's finding that reassignment possibilities had not
been "definitively exhausted" was based in large part on its rejection of this evidence,
that issue must also be revisited on remand.
CONCLUSION
For the foregoing reasons, the decision of the MSPB is vacated, and the case is
remanded for further proceedings. On remand, the MSPB is instructed to properly
consider Vanieken-Ryals' already-submitted medical and other evidence consistent with
this opinion and other applicable precedent.
VACATED and REMANDED.
2006-3260 16