Wright v. Office of Personnel Management , 390 F. App'x 996 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CECELIA ANN WRIGHT,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3075
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT844E090742-I-1.
___________________________
Decided: August 13, 2010
___________________________
CECELIA ANN WRIGHT, of Kingsport, Tennessee, pro se.
CAMERON COHICK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director. Of counsel on the brief was PAUL N.
WRIGHT v. OPM 2
ST. HILLAIRE, Office of the General Counsel, Office of Per-
sonnel Management, of Washington, DC.
__________________________
Before RADER, Chief Judge, NEWMAN, AND PROST, Circuit
Judges.
NEWMAN, Circuit Judge.
Ms. Cecelia Ann Wright appeals the decision of the
Merit Systems Protection Board (“Board”) affirming the
denial of her disability retirement application. 1 Ms. Wright
filed an application for disability annuity under the Federal
Employees Retirement System (“FERS”) on August 6, 2008
based on diagnoses of anxiety and agoraphobia. The Office
of Personnel Management (“OPM”) denied her application,
and explained that it was
unable to conclude from the medical documentation
provided that you are disabled from useful and effi-
cient service. There are no objective psychological
test results and only a limited history of continual
findings. There are no documented restrictions on
performance of your duties from your healthcare
providers, and it is unclear that your conditions
[are] likely to continue for one year from the date of
your application.
Wright, CSA 8-385-515, at *2 (Office of Personnel Mgmt.
Feb. 9, 2009).
1 Wright v. Office of Personnel Mgmt., No.
AT844E090742-I-1 (M.S.P.B. Jan. 22, 2010) (denying peti-
tion for review); Wright v. Office of Personnel Mgmt., No.
AT844E090742-I-1 (M.S.P.B. Sept. 28, 2009) (“Initial Deci-
sion”).
3 WRIGHT v. OPM
Ms. Wright then appealed to the Board. The Board
found that while Ms. Wright “has submitted ample evidence
to show that she suffers from these maladies, she has not
presented any medical evidence to show that she is unable
to perform useful and efficient service.” Initial Decision at
3. The Board considered that Ms. Wright’s agoraphobia
stemmed from an incident at work in which “she was sum-
moned to a meeting at her employing agency’s personnel
office and, when she arrived, her supervisor, with a person-
nel specialist as a witness, confronted her with alleged
performance deficiencies.” Id. Soon after the incident, Ms.
Wright took annual leave and did not return to work. The
Board found that the testimony presented at the hearing
“strongly suggests that the appellant’s decision not to return
to work was a matter of choice, not necessity.” Id. at 4. The
Board also concluded that “it is not at all clear that the
appellant’s condition cannot be effectively treated” and
noted that Ms. Wright “presented no medical evidence to
show that her medical condition is expected to continue for
at least 1 year from the date the application for disability
retirement was filed.” Id. at 5. The Board ultimately con-
cluded that “[t]he uncertain[ty] in the proof in this case
must be resolved in favor of OPM since it is the appellant
who bears the burden of proving her entitlement to disabil-
ity retirement by preponderant evidence.” Id. at 6. Ms.
Wright appeals.
DISCUSSION
The court’s review of Board decisions is governed by
statute. Generally, when reviewing decisions of the Board,
the court shall review the record and hold unlawful
and set aside any agency action, findings, or conclu-
sions found to be—
WRIGHT v. OPM 4
(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). Specifically for disability retirement
decisions under FERS, “this court is precluded by 5 U.S.C. §
8461(d) from reviewing the factual underpinnings of physi-
cal disability determinations, but may address whether
there has been a ‘substantial departure from important
procedural rights, a misconstruction of the governing legis-
lation, or some like error going to the heart of the adminis-
trative determination.’” Anthony v. Office of Personnel
Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl v.
Office of Personnel Mgmt., 470 U.S. 768, 791 (1985)).
On appeal, Ms. Wright argues that anxiety and agora-
phobia by definition prevent useful and efficient service.
She states that her “anxiety disorder was out of control,” her
“medication had to be double[d],” and she “had to be re-
moved from the area due to the extreme stressful situation”
when confronted by her manager. She states that even
prior to the incident that gave rise to her agoraphobia, she
endured “constant verbal rudeness” from her manager, and
had requested transfers several times to no avail. She also
points out, in reference to the lack of evidence that her
conditions would last a year or longer, that her conditions
continue today, more than a year later, despite treatment
and counseling.
Ms. Wright’s challenges to the Board’s decision all relate
to the factual underpinnings of a disability determination.
5 WRIGHT v. OPM
In order to obtain benefits, Ms. Wright was required to
prove as one element of her case that she has “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.” Thieman v. Office of Personnel
Mgmt., 78 M.S.P.R. 113, 116 (1998) (citing 5 C.F.R.
§844.103(a)). “[T]he disabling medical condition must be
expected to continue for at least 1 year from the date the
application for disability retirement is filed . . . .” Id.The primary deficiencies of proof identified by the Board
relate to the lack of evidence that Ms. Wright’s condition
results in a deficiency of performance, that her medical
conditions are incompatible with useful or efficient service,
or that the disabling conditions are expected to last more
than a year. These fundamental factual underpinnings of
the disability determination are solely within the province
of the agency and Board; they are not reviewable by this
court. We discern no issues of law presented by this appeal,
and the Board’s decision has not been shown to present 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, 470 U.S. at 791.
Ms. Wright states that since her disabling condition has
continued for over one year since the filing of her applica-
tion for benefits, it necessarily meets the requirement that
the condition is “expected to continue for at least 1 year
from the date the application for disability retirement is
filed.” 5 C.F.R. §844.103(a)(3). However, the Board found
that Ms. Wright had not shown her condition to be “dis-
abling”; that finding is not reviewable by this court. See 5
U.S.C. §8461(d), supra.
WRIGHT v. OPM 6
The Board’s decision must be affirmed.
No costs.
AFFIRMED