UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
APRIL J. WOLSTENCROFT, DOCKET NUMBER
Appellant, SF-844E-14-0642-I-1
v.
OFFICE OF PERSONNEL DATE: May 7, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Robert R. McGill, Walkersville, Maryland, for the appellant.
Linnette Scott, 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 OPM’s reconsideration decision denying
the appellant’s application for disability retirement under the Federal Employees’
Retirement System (FERS). Generally, we grant petitions such as this one only
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 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, and based on the following points and authorities, 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 The appellant was employed as a Management and Program Analyst at the
National Oceanic and Atmospheric Administration (NOAA). Initial Appeal File
(IAF), Tab 4 at 88, 117. According to her position description, the principal
objective of her position was support for the Protected Resources’ Divisions’
salmon recovery program, including information management, database systems
knowledge, database administration, quality assurance, quality control, customer
relations, and public outreach. Id. at 88-89. The duties of her position included
independent responsibility for planning, coordinating, and performing
administrative and management functions; analyzing and advising on changes in
policies and resources that affect program objectives; receiving supervisory
direction on policies, objectives, and results; and consulting with the supervisor
on priorities and unusual situations. Id. at 88. The appellant was required to
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identify problems, propose solutions, defend recommendations, and write and
communicate clear guidelines. Id.
¶3 On September 6, 2012, while still employed by NOAA, the appellant
applied for disability retirement under FERS. Id. at 48-51. She claimed she
became disabled due to post-traumatic stress disorder (PTSD), major depressive
disorder, anxiety, and panic disorder, complicated by migraine headaches and
irritable bowel syndrome. Id. at 50-51. On September 5, 2012, OPM issued an
initial decision denying the appellant’s disability retirement application. Id. at
41-43. In pertinent part, OPM found that she had failed to submit sufficient
medical evidence to substantiate that she was suffering from a disabling medical
condition. Id. at 43. Following a request for reconsideration by the appellant,
OPM issued a May 29, 2014 reconsideration decision affirming its initial denial
of the appellant’s application. Id. at 7-11.
¶4 Thereafter, the appellant filed an appeal of OPM’s reconsideration decision.
IAF, Tab 1. Following a hearing, the administrative judge issued an initial
decision reversing OPM’s reconsideration decision. IAF, Tab 18, Initial Decision
(ID) at 2, 10.
¶5 OPM has filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. On review, OPM contends that the administrative
judge erroneously credited the appellant’s and her counselor’s testimonies. Id. at
6. OPM further contends that the administrative judge disregarded facts showing
that the appellant (1) was able to continue to work until 2012 despite her claim
that she became disabled in 2006, (2) stopped taking medication in 2012, and
(3) barely attended any therapy sessions in 2014. Id. at 8-9. The appellant has
responded to the petition for review. PFR File, Tab 2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An employee bears the burden of proving by preponderant evidence his
entitlement to disability retirement. Henderson v. Office of Personnel
4
Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(b)(2)(ii). To
qualify for disability retirement benefits under FERS, an individual must meet the
following requirements: (1) the individual must have completed at least 18
months of creditable civilian service; (2) the individual must, while employed in a
position subject to FERS, have become 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 must be incompatible with either
useful and efficient service or retention in the position; (3) the disabling medical
condition must be 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 must be unreasonable; and (5) the
individual must not have declined a reasonable offer of reassignment to a vacant
position. 5 U.S.C. § 8451(a); Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R.
§ 844.103(a).
¶7 The administrative judge found that it was undisputed that the appellant
timely filed her FERS 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 3. The administrative judge further found that the
appellant suffered from PTSD and major depressive disorder that rendered her
incapable of useful and efficient service, and that she had shown that her
disabling conditions were likely to last for more than a year from September
2012. ID at 8-10. In addition, the administrative judge found that the appellant
had shown that accommodation of her conditions in the Management and Program
Analyst position was unreasonable and that she was never offered an
accommodation to a vacant position. ID at 10.
¶8 The parties do not dispute that the appellant had completed at least 18
months of creditable civilian service and that she had not declined a reasonable
offer of reassignment, and we discern no basis for disturbing these findings on
review. Therefore, the only remaining issues in this appeal relate to the
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appellant’s medical condition and its effects on her ability to perform in her
former position, i.e., eligibility criteria (2), (3), and (4). For the following
reasons, we find that the appellant has met these criteria and is entitled to a
disability retirement.
¶9 There are two ways to meet the statutory requirement that an employee “be
unable, because of disease or injury, to render useful and efficient service in the
employee’s position”: (1) by showing that the medical condition caused a
deficiency in performance, attendance, or conduct; or (2) by showing that the
medical condition is incompatible with either useful and efficient service or
retention in the position. Henderson v. Office of Personnel
Management, 117 M.S.P.R. 313, ¶¶ 12-19 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5
C.F.R. § 844.103(a)(2). Under the first method, an appellant can establish
entitlement by showing that her medical condition affected her ability to perform
specific work requirements, prevented her from being regular in attendance, or
caused her to act inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the
second method, the appellant can show that the medical condition is inconsistent
with working in general, working in a particular line of work, or working in a
particular type of setting. Id.
¶10 A determination of disability is based on objective clinical findings,
diagnoses and medical opinions, subjective evidence of pain and disability, and
evidence showing the effect of the applicant’s condition on her ability to perform
the duties of her position. Id., ¶ 19. “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).
¶11 With regard to diagnoses and medical opinions, the appellant has presented:
(1) a May 15, 2012 letter from her counselor stating that she had first met the
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appellant on September 20, 2010, had conducted 41 individual therapy sessions
with her, and that she had diagnosed the appellant with PTSD based on the
appellant’s history of physical and emotional childhood abuse, nightmares, panic
attacks, disassociation, and hypervigilance; (2) biweekly therapy notes with her
counselor from March 2011 to June 2012, documenting the appellant’s symptoms
and her progress; (3) an October 23, 2013 letter from her counselor reiterating the
appellant’s initial diagnosis of PTSD and stating that the appellant also meets the
criteria for major depressive disorder, as evidenced by her prolonged periods of
sadness, feelings of hopelessness, helplessness, and worthlessness; and (4) her
counselor’s testimony stating that she is a licensed counselor in the State of
Oregon, specializes in adult PTSD, and that she had diagnosed the appellant,
using the Diagnostic and Statistical Manual of Mental Disorders-IV, with PTSD
and major depressive disorder based on the appellant’s self-report, a group
therapy report, and sessions with the appellant after an initial diagnosis of anxiety
disorder. IAF, Tab 4 at 27-28, 54-55, 59-87; Hearing Compact Disc (HCD).
¶12 As to evidence of subjective pain and disability, the appellant presented:
(1) her counselor’s therapy notes from March 2011 to June 2012 recording the
subjective complaints the appellant made during office visits; and (2) her own
testimony that she became disabled in 2006 and, since then, has been suffering
from numerous physical limitations. IAF, Tab 4 at 59-87; HCD.
¶13 Concerning the effect of the appellant’s condition on her ability to perform
in her former position, she presented: (1) descriptions of the duties and
requirements of her former position; (2) a May 15, 2012 letter from her counselor
stating that the appellant could no longer perform her job duties because they
required focus, concentration, and attention to detail, and the appellant’s PTSD
rendered her incapable of focusing and concentrating; (3) her counselor’s
testimony that two major components of the appellant’s job—significant attention
to detail and communication—are nearly impossible for the appellant to engage in
when she is experiencing PTSD symptoms and that the appellant’s depression had
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pervaded all aspects of her life, including her work; (4) her own testimony that
her psychiatric conditions result in an inability to focus or concentrate, and
therefore prevent her from performing her job, which requires concentration and
attention to detail; and (5) an October 23, 2013 letter from the appellant’s
counselor stating the appellant could not perform the duties of her position, or
any similar position, as of May 2011. IAF, Tab 4 at 27-28, 54-55, 88-89; HCD.
¶14 We find that, based on the totality of the evidence, the appellant has met her
burden of establishing that, while employed at NOAA, she suffered from a
disabling medical condition that was incompatible with useful and efficient
service or retention in her position. In particular, we agree with the
administrative judge’s finding that the appellant was disabled due to PTSD. 2
¶15 OPM’s contentions on review do not provide a basis for disturbing this
finding. While OPM contends that the appellant’s and her counselor’s
testimonies are inconsistent with evidence showing the appellant engaged in rock
climbing, was enrolled in nursing school, and participated in numerous other
outdoor social activities, PFR File, Tab 1 at 6-7, the administrative judge
considered the fact that the appellant participated in outdoor activities and was
enrolled in classes in her initial decision, ID at 7-8. However, as noted by the
administrative judge, the appellant’s counselor testified that it was not
inconsistent for the appellant to be able to attend classes but not be able to
perform her job, because classes are voluntary and there is no pressure, as
opposed to her job, which requires responsibility for completing her work and
increases her anxiety level. HCD. The appellant’s counselor further testified
that, even in low pressure environments, the appellant’s brain still shuts down.
Id. Although OPM states that the testimony of the appellant’s counselor is not
credible because it is based on the appellant’s subjective statements, the U.S.
Court of Appeals for the Federal Circuit has noted that, because psychological
2
Because we find that the appellant was disabled due to PTSD, we decline to make a
findin g regarding whether she also was d isabled due to major depressive disorder.
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issues are often almost exclusively diagnosed based upon patient-reported
symptoms, medical reports relying exclusively on an appellant’s own description
of her psychological symptoms are relevant evidence for purposes of determining
disability retirement eligibility. Vanieken-Ryals, 508 F.3d at 1042. OPM has not
called into question the appellant’s counselor’s professional competence, has not
alleged that the counselor’s professional opinions are not based on established
diagnostic criteria, or alleged that these opinions are inconsistent with generally
accepted professional standards. See id. at 1042-43. In addition, OPM has failed
to present any medical evidence contrary to that presented by the appellant. See
Henderson, 117 M.S.P.R. 313, ¶ 23 (it is well established that subjective evidence
may be entitled to great weight on the matter of disability, especially where such
evidence is not contradicted by the record). Accordingly, we discern no basis for
disturbing the administrative judge’s decision to credit the appellant’s counselor’s
testimony on this issue.
¶16 OPM also contends that the appellant’s performance between 2006 and
2012 was satisfactory and that she received a promotion in February 2007 and
numerous cash awards between 2006 and 2012. PFR File, Tab 1 at 8. While
OPM’s contention may show that the appellant cannot establish entitlement to a
disability award under the first method articulated by the Board in
Henderson, 117 M.S.P.R. 313, ¶ 16, which requires than an appellant show that
her medical condition affected her ability to perform specific work requirements,
prevented her from being regular in attendance, or caused her to act
inappropriately, the appellant may still establish entitlement under the second
method. We find that the appellant has established entitlement under the second
method because she has shown that her medical condition is inconsistent with
working in her position or any similar position. See id.
¶17 Regarding the agency’s assertions that the appellant did not seek adequate
treatment for her conditions, PFR File, Tab 1 at 9, the appellant contended in her
disability retirement application and testified that she had complied with all
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treatment regimes. IAF, Tab 4 at 50; HCD; cf. Smedley v. Office of Personnel
Management, 108 M.S.P.R. 31, ¶ 23 (2008) (when an employee fails or refuses to
follow or accept normal treatment, her disability flows not from the disease or
injury itself, as the statute requires, but from her voluntary failure or refusal to
take the available corrective or ameliorative action). The appellant stated that her
treatment regimes included dialectal behavorial therapy, sensorimotor
psychotherapy, prolonged exposure treatment and medication to treat anxiety and
panic disorders. IAF, Tab 4 at 50; HCD. The appellant’s counselor’s statements
corroborate that, between 2010 and 2013, the appellant was being treated with
dialectical behavioral therapy, sensorimotor psychotherapy, and prolonged
exposure treatments with limited success. IAF, Tab 4 at 27. The counselor
testified that attempting a medicine regime with the appellant would be difficult
because to effectively medicate her would require prescribing a dosage that would
knock her out, rendering her incapable of working. Id. OPM has not presented
any medical evidence that would shed doubt on the appellant’s counselor’s
testimony. See Henderson, 117 M.S.P.R. 313, ¶ 23.
¶18 We discern no other basis for disturbing the administrative judge’s finding
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. While the appellant has not submitted any
evidence of relevant objective clinical findings, our reviewing court has found
that such evidence is not necessary for an appellant to establish entitlement to a
disability retirement. See Vanieken-Ryals, 508 F.3d at 1041. We also find the
appellant’s counselor’s conclusions persuasive because they are based on a long
familiarity with the appellant and her conditions. See Tan-Gatue v. Office of
Personnel Management, 90 M.S.P.R. 116, ¶ 11 (2001) (the Board gives greater
weight to medical conclusions based on a long familiarity with a patient than to
those based on a brief association or single examination), aff’d, 52 F. App’x 511
(Fed. Cir. 2002).
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¶19 Finally, the appellant has met the remaining criteria for establishing
entitlement to a disability retirement. The appellant’s counselor opined in her
October 23, 2013 letter that the appellant’s condition had lasted well over 12
months and was likely to be permanent in nature. IAF, Tab 4 at 27-28. We
therefore agree with the administrative judge’s finding that the appellant
established that her PTSD was expected to continue for at least 1 year from
September 6, 2012—the date the disability retirement benefits application was
filed. ID at 10; see Henderson, 109 M.S.P.R. 529, ¶ 8. As noted by the
administrative judge, the appellant’s supervisor indicated that an accommodation
was not possible due to the severity of the appellant’s medical condition and the
requirements of the position. IAF, Tab 4 at 106. The appellant’s supervisor
further indicated that reassignment was not possible because there were no vacant
positions within the agency for which the appellant met the minimum
qualification standards. Id. at 107-08. Thus, we discern no basis for disturbing
the administrative judge’s finding that the appellant established that an
accommodation of her disabling medical condition in the Management and
Program Analyst position was unreasonable. ID at 10; see
Henderson, 109 M.S.P.R. 529, ¶ 8.
¶20 Based on the foregoing, we AFFIRM the initial decision reversing OPM’s
reconsideration decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
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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 your court
appeal, 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 Circuit. The Merit Systems Protection Board
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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.