Lauren McLaughlin v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAUREN MCLAUGHLIN, DOCKET NUMBER
Appellant, PH-844E-20-0282-I-1
v.
OFFICE OF PERSONNEL DATE: February 27, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leah Bachmeyer Kille, Esquire, Lexington, Kentucky, for the appellant.
Moraima Alvarez, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for disability retirement under the Federal
Employees’ Retirement System (FERS). For the reasons discussed below, we
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review and REVERSE the initial decision and
OPM’s reconsideration decision.
BACKGROUND
¶2 The appellant served as a Consumer Safety Officer with the Food and Drug
Administration (FDA) from March 24, 2002, until she resigned effective May 7,
2018. Initial Appeal File (IAF), Tab 4 at 77, 100, 102 . In this position, she
inspected, investigated, and collected samples of commodities that go “on or in
[the human] body.” IAF, Tab 20, Hearing Recording (HR) at 3:05 (testimony of
the appellant). Her position required “quite a bit of travel. . . . Probably a 2 hour
drive . . . each way” on a typical day. HR at 4:50 (testimony of the appellant).
On May 6, 2019, she applied for disability retirement under FERS based on the
following conditions: post-traumatic stress disorder (PTSD), major depressive
disorder, segmental myoclonus, cervicalgia, and regional myoclonic jerks . IAF,
Tab 4 at 55-56, 79-81, 83-86.
¶3 Since 1987, the appellant has suffered from depression “on and off over the
years.” IAF, Tab 15 at 37; HR at 59:50 (testimony of the appellant). Her PTSD
began in 1988. IAF, Tab 15 at 37; HR at 59:50 (testimony of the appellant). In
2008, she was diagnosed with segmental myoclonus caused by carbon monoxide
poisoning, resulting in regional myoclonic jerks, back and neck pain
(cervicalgia), and fatigue. HR at 19:00 (testimony of the appellant); IAF, Tab 4
at 80, Tab 15 at 19-20. Myoclonus is a condition that causes sudden muscular
contractions, “generally due to a central nervous system lesion.” Myoclonus,
Stedman’s Medical Dictionary 584030, accessed via westlaw.com (last visited
Feb. 27, 2023). According to the appellant, her medical conditions prevented her
from performing various duties of her position, including driving. HR at 29:00
(testimony of the appellant).
¶4 OPM issued a reconsideration decision, denying the appellant’s application
for disability retirement. IAF, Tab 4 at 5-8. The appellant appealed OPM’s
3
reconsideration decision to the Board and requested a hearing. IAF, Tab 1. After
holding a telephonic hearing, the administrative judge issued an initial decision
that affirmed OPM’s decision. IAF, Tab 17 at 4, Tab 22, Initial Decision (ID)
at 1, 12-13. She reasoned that the appellant did not show that her segmental
myoclonus caused a service deficiency in performance, conduct, or attendance .
ID at 4-12. She also appears to have determined that the appellant did not show
that the agency could not reasonably accommodate her myoclonus. ID at 9-10.
She did not make a finding as to the whether the appellant’s PTSD and depression
were disabling. ID at 12-13.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has filed a response. PFR File, Tab 3. The appellant has filed
a reply to OPM’s response and a motion to submit additional evidence. 2 PFR
File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Thorne v. Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007);
2
The appellant moves to introduce documents from September 2010 through
August 2012 relating to her medical conditions and restrictions. PFR File, Tab 4 at 6-7,
9-25. She argues that these documents were unavailable at the close of record because
“they were archived in a retired and inactive email address” and that she only realized
the importance of these documents after the initial decision and the agency’s response
to her petition for review made it clear that the administrative judge and agency gave
little weight to her hearing testimony. PFR File, Tab 4 at 7. Under 5 C.F.R.
§ 1201.115, the Board generally will not consider evidence submitted for the first time
with a petition for review absent a showing that it was unavailable before the record
was closed before the administrative judge despite the party’s due diligence. Avansino
v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). An appellant’s failure, as here,
to realize the need for more complete documentation is a lack of due diligence. Black
v. Department of the Treasury, 26 M.S.P.R. 529, 530-31 (1985). The appellant has not
provided any explanation as to why she could not attempt to log onto this email account
prior to the close of record. Therefore, we deny the appellant ’s motion to submit new
evidence, and we decline to consider those documents here.
4
5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement annuity
under FERS, an employee must show the following: (1) she completed at least
18 months of creditable civilian service; (2) while employed in a position subject
to FERS, she became 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 is incompatible with either useful and
efficient service or retention in the position; (3) the condition is e xpected to
continue for at least 1 year from the date that the application for disability
retirement benefits was filed; (4) accommodation of the disabling medical
condition in the position held must be unreasonable; and (5) she did not decline a
reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451(a);
Thorne, 105 M.S.P.R. 171, ¶ 5; 5 C.F.R. § 844.103(a).
¶7 The administrative judge found, and the parties do not dispute on review,
that the appellant met the 18-month service requirement under FERS at the time
she filed her application and did not decline a reasonable offer of reassignment to
a vacant position. ID at 4, 9-10; IAF, Tab 4 at 60-61, 97-100, 102, Tab 14 at 4-5,
Tab 15 at 24; HR at 34:00, 43:00 (testimony of the appellant). Thus, the
appellant’s entitlement to a disability retirement annuity depends on whether she
had a disabling medical condition that was expected to last for at least 1 year
from May 2019 and whether accommodating that condition was unreasonable.
Thorne, 105 M.S.P.R. 171, ¶ 5.
The administrative judge erred in finding that there was in sufficient evidence that
the appellant’s medical conditions prevented her from rendering useful and
efficient service.
¶8 There are two ways to meet the statutory requirement that the employee “be
unable, because of disease or injury, to render useful and ef ficient service in the
employee’s position.” Henderson v. Office of Personnel Management,
117 M.S.P.R. 313, ¶¶ 16 (2012); Jackson v. Office of Personnel Management,
118 M.S.P.R. 6, ¶¶ 6-7 (2012) (applying Henderson to FERS cases). First, an
5
appellant can establish that the medical condition caused a deficiency in
performance, attendance, or conduct, as evidenced by the effect of her medical
condition on her ability to perform specific work requirements, or that her
medical condition prevented her from being regular in attendance or caused her to
act inappropriately. Rucker v. Office of Personnel Management, 117 M.S.P.R.
669, ¶ 10 (2012); Henderson, 117 M.S.P.R. 313, ¶ 17. Alternatively, the
employee can show that her medical condition is inconsistent with working in
general, in a particular line of work, or in a particular type of work setting.
Rucker, 117 M.S.P.R. 669, ¶ 10; Henderson, 117 M.S.P.R. 313, ¶ 17.
¶9 In her initial decision, the administrative judge found insufficient evidence
to show that the appellant’s segmental myoclonus prevented her from rendering
useful and efficient service. ID at 4-13. The appellant disputes this finding. PFR
File, Tab 1 at 5-10. We agree with the appellant and conclude that she proved
that her myoclonus, combined with her mental health conditions, caused a
deficiency in performance, as evidenced by the effect of her medical condition s
on her ability to perform the driving requirements of her position.
The appellant established that her position required extensive driving.
¶10 An appellant’s inability to perform the extensive driving requirements of
her position can render her disabled from rendering useful and efficient service . 3
See Wommack v. Office of Personnel Management, 8 M.S.P.R. 218, 220-22
(1981) (finding the evidence sufficient to support the appellant’s contention that
he was disabled based on a medical condition that rendered him unable to fulfill
the extensive driving requirements of his position). The appellant testified
without contradiction that her position “require[d] at least 50% travel.” HR
3
To the extent that the appellant also had difficulty driving to and from work, we do
not consider those limitations here. IAF, Tab 4 at 30. Difficulty in commuting is not a
relevant consideration in a disability retirement determination. Jolliffe v. Office of
Personnel Management, 23 M.S.P.R. 188, 191 (1984), aff’d, 785 F.2d 320 (Fed. Cir.
1985) (Table).
6
at 29:20 (testimony of the appellant). She added that typical driving during the
work day was “about 2 hours each way.” HR at 5:10 & 28:00 (testimony of the
appellant). This testimony was corroborated by her position description, which
specified that approximately 50% of her duties involved travel in order to conduct
inspections and investigations. IAF, Tab 5 at 4-9. The administrative judge
appears to have found that driving was a requirement of the appellant’s position,
and we agree. ID at 11-12.
The administrative judge erred in discounting the appellant’s medical evidence.
¶11 The administrative judge appeared to find that the appellant failed to
provide sufficient medical evidence to support her claim that she was unable to
perform the duties of her position. ID at 4-12. The appellant argues that she met
her burden to prove that she was medically unable to drive. PFR File, Tab 1
at 6-8, 9-10, 12-13. We agree with the appellant. 4
¶12 In her initial decision, the administrative judge applied a “general” rule that
medical evidence must show how the employee’s conditions affect her ability to
perform specific job duties and requirements, and she determined that the
appellant’s medical evidence failed to make this showing. ID at 4, 6, 8. For
example, she found that the medical opinion of the appellant’s treating
neurologist did not support the appellant’s disability retirement application
because he did not “address[] . . . the impact of the appellant’s condition on her
specific work requirements,” and “he had not reviewed the [appellant’s] position
description” or materials related to her disability retirement application. ID at 8.
In finding the neurologist’s opinion deficient, the administrative judge cited to
the Board’s decision in Henderson, 117 M.S.P.R. 313, ¶¶ 12, 14. ID at 4.
4
Because, as discussed below, we find the appellant met her burden to prove eligibility
for a disability retirement annuity based on her driving restriction, we do not reach the
issue of whether, as she argues on review, her medical conditions also caused
deficiencies in her attendance and conduct. PFR File, Tab 1 at 5 -8.
7
¶13 In fact, the Henderson decision rejected this approach. In Henderson, the
Board overruled the line of cases that indicated there was a “general” rule that an
appellant’s entitlement to a disability retirement is conditioned on her providing
evidence from a medical provider explaining specifically how her medical
conditions affected specific work requirements. Henderson, 117 M.S.P.R. 313,
¶¶ 17-18.
¶14 The administrative judge also appears to have found the appellant’s
neurologist’s notes insufficient because they reiterated what the appellant said to
him during their sessions and did not state that the appellant was medically
impaired. ID at 6-9. This determination was also in error. Although objective
medical evidence must be considered, such evidence is not required to establish
disability. Doe v. Office of Personnel Management, 109 M.S.P.R. 86, ¶ 10 (2008)
(citing Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034,
1040-44 (Fed. Cir. 2007)). As stated by the U.S. Court of Appeals for the Federal
Circuit, “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, 508 F.3d at 1041.
¶15 Similarly, the administrative judge erred in disregarding the appellant’s
documentation from the healthcare providers who treated her PTSD and
depression. ID at 7, 10-11. At one point, the administrative judge suggested that
this documentation was not relevant because these healthcare providers did not
treat the appellant’s myoclonus. ID at 7-8. However, the conditions based upon
which the appellant sought a disability retirement annuity included not only
myoclonus, but also PTSD and depression. IAF, Tab 4 at 80. The requisite
showing of medical disability may be made based on the existence of a
combination of medical conditions. Hunt v. Office of Personnel Management,
105 M.S.P.R. 264, ¶ 35 (2007). Further, it is appropriate to rely on the causal or
exacerbating effect of various medical conditions on one another . Id. Thus, the
8
appellant’s medical evidence related to her mental health conditions is relevant in
this appeal.
¶16 Further, to the extent that the administrative judge indicated that the
medical documentation related to the appellant’s mental health should be
discounted because her conditions arose out of “her traumatic experiences and
relationship and financial difficulties,” we are not persuaded. ID at 7, 10-11.
The cause of a condition is not relevant in determining whether an applicant is
eligible for disability retirement. Marucci v. Office of Personnel Management,
89 M.S.P.R. 442, ¶ 9 (2001). Thus, we cannot agree with the administrative
judge that this medical documentation does not warrant serious consideration .
¶17 Finally, the administrative judge erred in giving little to no weight to the
appellant’s medical evidence of her mental health conditions because the notes
from her mental health providers began when the appellant was still employed,
but no longer reporting to work, and continued after her resignation. ID at 7,
10-11. The appellant need only establish that she became disabled while
employed in a position subject to FERS. 5 C.F.R. § 844.103(a)(2) (providing, as
relevant here, that to be eligible for a FERS disability retirement annuity, the
applicant “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”). The appellant’s absence from work does not indicate a
lack of disability, and indeed a deficiency in attendance may be a basis for
finding an employee has a disabling condition. Id. Thus, the appellant’s medical
evidence dating from after she began a period of extended leave is relevant here.
¶18 Further, as to medical evidence dating after her resignation , post-separation
medical evidence can be probative of whether the appellant became disabled
while serving in a FERS position when “proximity in time, lay testimony, or some
other evidence provides the requisite link to the relevant period.” Reilly v. Office
of Personnel Management, 571 F.3d 1372, 1382 (Fed. Cir. 2009). We have
considered the appellant’s post-resignation medical evidence here because she
9
provided testimony linking her worsening mental conditions and myoclonus to the
period of time when she resigned. HR at 12:20, 27:00, 29:20, 32:00 & 47:00
(testimony of the appellant).
The appellant established that her medical conditions caused her to be unable to
perform the driving requirements of her position.
¶19 The Board will consider all pertinent evidence in determining an appellant’s
entitlement to disability retirement: objective clinical findings, diagnoses and
medical opinions, subjective evidence of pain and disability, and evidence
relating to the effect of the applicant’s condition on her ability to perform the
duties of her position. Henderson, 117 M.S.P.R. 313, ¶ 19. Nothing in the law
mandates that a single provider tie all of this evidence together. Id. For example,
if the medical provider sets forth clinical findings, a diagnosis, and a description
of how the medical condition affects the appellant’s activities in gener al terms,
the Board could consider that evidence, together with the appellant’s subjective
account of how the condition has affected her ability to do her job and her daily
life, testimony or statements from supervisors, coworkers, family members, and
friends, and the appellant’s position description. Id.¶20 Here, the appellant testified that her myoclonic jerks cause d her to have two
car accidents, one in her personal vehicle in 2010, when her arm jerked and she
drove into a pole, and one in a Government vehicle on an unspecified date in
2017, when she “dragged a car through a fence gate and took out the whole left
side of the vehicle.” HR at 12:20 & 32:00 (testimony of the appellant). The
second accident led her to conclude that she could no longer drive. Id. at 12:20(testimony of the appellant). She explained, “as the stress . . . increased, my
symptoms were increasing . . . and it became a vicious cycle—with my
symptoms exacerbating, stressing about driving.” Id. at 27:00 (testimony of the
appellant). She testified that as a result, she was unable to perform the driving
requirement of her job stating, “I was sick . . . I was really struggling, the
commute, and drive and to not crash a car and I was under a lot of stress” an d
10
“traveling is my difficulty. I can’t drive, I don’t drive, and I won’t drive.” Id.
at 29:20 (testimony of the appellant). She also testified that her job requires a
high level of concentration and that she “had difficulty thinking straight and
staying focused” because of medication she was taking for her depression. Id.
at 47:00 (testimony of the appellant). On the Agency Certification of
Reassignment and Accommodation Efforts completed by the appellant’s
supervisor in connection with her disability retirement application, he observed,
in essence, that the appellant’s medical conditions prevented her from
“perform[ing] the functions of her job as described in her position description .”
IAF, Tab 18 at 34, 36. Similarly, the Supervisor’s Statement he completed
reflected his assessment that her performance was less than fully successful. Id.
at 47-48. Eventually, in November 2017, the appellant stopped reporting to work
for medical reasons and was on leave without pay through her resignation. Id.
at 46; HR at 49:00 (testimony of the appellant).
¶21 Consistent with the appellant’s testimony, both the appellant’s mental
healthcare providers and her neurologist indicated that her mental health
conditions exacerbated her myoclonus, and vice versa, to the point where she was
no longer able to perform her job functions. For instance, in January 2018, the
appellant’s treating licensed clinical social worker (LCSW) completed a Family
and Medical Leave Act of 1993 certification form stating that the appellant
should take extended leave from January 23, 2018, through January 23, 2019.
IAF, Tab 15 at 32-35. The LCSW explained that the appellant “displays tics,
tremors, spasms and seizures which cause embarrassment, shame, inadequacy,
and worthlessness,” which in turn “cause[] her to have daily panic attacks and
severe anxiety which interrupts daily functioning.” Id. at 33-34.
¶22 The appellant’s neurologist, who has treated her since at least 2012, also
corroborated her testimony. His January 17, 2018 notes reflect that, “starting in
October or November [the appellant] had a re-exacerbation of her depression and
she [has] undergone a number of different medication changes.” IAF, Tab 4
11
at 30. He stated that her myoclonus “had been under control” with the medication
Lamictal “but unfortunately as her mood disorder worsened so to[o] did her
segmental myoclonus. . . . [S]he has been out of work since late November 2017
and believes that she will be unable to return to work in the capacity that she had
been secondary to her [myo]clonus and mood disorder.” 5 Id. His notes reflected
that the medications she was taking for her conditions negatively affected her
judgment and driving. Id. Shortly thereafter, in February 2018, he recommended
that the appellant work from home “due to limitations on driving for long periods
of time.” IAF, Tab 15 at 25. After the appellant resigned, her neurologist
expressed his belief that she stopped working because her work environment
caused stress, which in turn exacerbated her myoclonus “such that [she] could not
perform her job.” Id. at 21-23.
¶23 As discussed above, the administrative judge appears to have found the
appellant’s medical evidence to be lacking. We do not agree. I n assessing the
probative weight of medical opinion, the Board considers whether the opinion
was based on a medical examination, whether the opinion provided a reas oned
explanation for its findings as distinct from mere conclusory assertions, the
qualifications of the expert rendering the opinion, and the extent and duration of
the expert’s familiarity with the appellant’s treatment. Wren v. Department of the
Army, 121 M.S.P.R. 28, ¶ 9 (2014). Here, the appellant provided medical
documentation from her treating neurologist and LCSWs. She had a longstanding
treatment relationship with her neurologist, beginning in 2012. IAF, Tab 15
at 19. Her neurologist’s stationery identified him as a medical doctor with a
board certification in neurology and a Ph.D., and we have no reason to question
those qualifications. Id. at 25.
5
He referred to this anti-seizure medication by its generic name, lamotrigine. See
https://www.mayoclinic.org/drugs-supplements/lamotrigine-oral-route/description/drg-
20067449 (last visited Feb. 27, 2023). For the sake of clarity and consistency, we will
refer to it in this decision by the brand name Lamictal.
12
¶24 The appellant began treatment at the clinic that was the source of her mental
health documentation in December 2017. Id. at 33, 37. She received counseling
from a particular LCSW at that clinic beginning as early as July 2018. Id. at 37,
46. Thus, the clinic and LCSW’s familiarity with the appellant began months
prior to her May 2019 application for disability retirement . IAF, Tab 4 at 55-56,
79-81, 83-86. While we have less information about the qualifications of the
appellant’s treating LCSW, we have no reason to doubt that she was qualified to
treat depression and PTSD.
¶25 The medical notes, discussed above, are specific, discuss relevant medical
factors, and are not contradicted. See Confer v. Office of Personnel Management,
111 M.S.P.R. 419, ¶ 20 (2009) (indicating that these factors, as well as others, are
considerations in determining the probative value of medical evidence) . Thus, we
find that the opinion of the appellant’s healthcare providers is entitled to
significant probative weight and that, based on this evidence in combination with
the appellant’s testimony and her supervisor’s statements, she established that her
medical conditions caused her to be unable to perform the driving requirements of
her position. ID at 6, 8.
The evidence does not support the administrative judge’s conclusion that the
appellant refused to take medication that controlled her myoclonus.
¶26 The administrative judge also appeared to find that the appellant’s
myoclonus became disabling as a result of the appellant’s refusal to take
Lamictal, against the advice of her neurologist. ID at 8-9. The appellant
challenges this finding on review, arguing that she stopped taking the Lamictal
after it stopped working effectively. PFR File, Tab 1 at 11. She argues that her
neurologist approved of this change in medication. Id. at 11-12.
¶27 A voluntary refusal to accept facially reasonable treatment can bar
entitlement to disability retirement benefits. Frontan v. Office of Personnel
Management, 90 M.S.P.R. 427, ¶ 8 (2001). However, the Board has held that an
appellant need not take medications that do not enable her, with or without
13
accommodation, to perform the duties of her position. Doe, 109 M.S.P.R. 86,
¶ 20. For example, the has Board found that an appellant established entitlement
to disability retirement when both she and her doctor testified that prescribed
medications did not control her PTSD. Id. Similarly, the Board has accepted
appellants’ arguments that side effects prevented them from taking their
prescribed medication, and the Board has not denied disability retirement when
drugs are no longer taken for this reason. Confer, 111 M.S.P.R. 419, ¶¶ 23-24.
Thus, the has Board found insufficient evidence that an appellant refused to
follow treatment recommendations when she alleged that she stopped taking two
different medications for depression because one caused nausea and the other
caused dizziness. Id.¶28 Initially, Lamictal helped to control the appellant’s myoclonic jerks. HR
at 13:30 (testimony of the appellant); IAF, Tab 4 at 28, Tab 5 at 127-28.
However, according to the appellant, despite this medication, she began to have
“break-through tics” or jerks in 2017. HR at 14:30 (testimony of the appellant).
She indicated that one such incident caused her to have her 2017 accident in a
Government-owned vehicle. HR at 12:20 & 32 (testimony of the appellant). It
was at that time that she determined she could no longer drive. Id.; IAF, Tab 4
at 80. In her disability retirement application, she stated that she became disabled
from her position in October 2017, and she testified that she last reported to work
in November 2017. IAF, Tab 4 at 79; HR at 49:00 (testimony of the appellant).
¶29 In November 2017, the appellant advised her neurologist that she had
reduced her Lamictal. IAF, Tab 4 at 28. Although initially her neurologist stated
that the appellant’s myoclonus reemerged around November 2017 because she cut
back on her Lamictal in January 2018, he stated that it was her worsening mood
disorder that caused her myoclonus to worsen. IAF, Tab 4 at 30, Tab 15 at 26.
We have considered this conflicting explanation, but we find that the appellant
has established by a preponderance of the evidence that she did not refuse to
follow treatment recommendations.
14
¶30 First, the appellant testified that she stopped taking the medication in
January 2018 because, in addition to no longer preventing her myoclonic jerks, it
was difficult to take and caused stomach pain. HR at 14:16 & 1:20:00 (testimony
of the appellant). She also testified that her neurologist was on board with her
decision to stop taking Lamictal. Id. at 14:16 (testimony of the appellant).
Consistent with that testimony, at the time of her resignation in May 2018, the
appellant’s neurologist stopped recommending Lamictal and prescribed her only
clonazepam on an as-needed basis for her myoclonus. IAF, Tab 4 at 32-33. In
September 2020, her neurologist confirmed via interrogatories that the appellant
has been compliant with reasonably prescribed medical treatment. IAF, Tab 15
at 23. Thus, under the circumstances of this case, we find that the evidence does
not show that the appellant refused to follow treatment recommendations. Even if
she had, we would find that her uncontroverted explanation that the Lamictal
became less effective and caused stomach pain is a legitimate basis for stopping
the medication.
The appellant’s medical condition was not situational or confined to a single
work environment.
¶31 OPM argues that the appellant’s depression and anxiety were situational
based on “troubles at work stemming from the Weintgarten [sic] Investigation ,
reprimands and leave restriction.” PFR File, Tab 3 at 6. Among OPM’s
prehearing exhibits is a November 1, 2017 Memorandum of Weingarten
Investigative Interview regarding the appellant’s alleged unauthorized use of a
Government-owned vehicle on August 24, 2017, and her failure to account for her
whereabouts on August 30, 2017. IAF, Tab 18 at 12-14. There was no testimony
during the hearing explaining the relevance of this memorandum, nor did the
administrative judge discuss it in her initial decision. HR; ID.¶32 The Board has rejected disability claims when the appellant’s conditions
were largely situational, i.e., apparent only in her work environment or in the
context of what she perceives as a hostile work environment. Luzi v. Office of
15
Personnel Management, 109 M.S.P.R. 79, ¶ 9 (2008); Cosby v. Office of
Personnel Management, 106 M.S.P.R. 487, ¶¶ 7, 10 (2007). However, the Board
has distinguished such circumstances from ones in which job-related stress
precipitated and exacerbated an appellant’s condition, which was itself disabling.
Doe, 109 M.S.P.R. 86, ¶ 18; Thorne, 105 M.S.P.R. 171, ¶ 15. The Board has
repeatedly held that job-related stress resulting in physical or mental impairments
that prevent an employee from performing the duties required in her position can
warrant the granting of disability retirement. Doe, 109 M.S.P.R. 86, ¶ 18;
Thorne, 105 M.S.P.R. 171, ¶ 15; Kimble v. Office of Personnel Management,
102 M.S.P.R. 604, ¶ 14 (2006).
¶33 Here, the medical evidence and testimony do not support a finding that the
appellant’s segmental myoclonus and depression were a reaction to her particular
workplace, “troubles” from the Weingarten investigation, or attendance-related
reprimands and leave restriction. Rather, these conditions were apparent outside
of the specific work environment at the FDA. The record shows that the
appellant was suffering from worsening depression since 2012 and, according to
December 2017 notes from a treating LCSW, “ha[d] been isolating herself for . . .
years to the point where she [was] in danger of losing her job.” IAF, Tab 15
at 37. The appellant suffered from depression both before and after her
resignation, causing her to isolate herself, “not leav[e] her bed or home for days,”
and not shower or otherwise care for herself. Id. at 46-77, 84. The appellant
similarly testified that she continues to suffer from her mental health conditions,
despite complying with treatment and incorporating changes to diet and exercise.
HR at 35:00 (testimony of the appellant). The appellant also testified that her
myoclonus is permanent, she has not driven since 2018, and she no longer has a
valid driver’s license due to her myoclonic jerks. Id. at 12:20, 35:00 (testimony
16
of the appellant). Thus, we do not find that her depression and anxiety were
situational. 6
¶34 Similarly, to the extent OPM is arguing that the appellant did not resign
until she was at risk of discipline, thereby detracting from her claims of
disability, we are not persuaded. The Board has held that an appellant’s
application for disability retirement in the face of an impending removal for
misconduct may cast doubt on the veracity of her application. Henderson v.
Office of Personnel Management, 109 M.S.P.R. 529, ¶¶ 2-3, 9, 21 (2008) (finding
that the appellant established an entitlement of disabilit y retirement despite the
suspicious timing of his application, which occurred after he was indefinitely
suspended pending the outcome of a criminal charge of marijuana distribution).
¶35 The investigative interview into the appellant’s alleged unauthorized use of
a Government vehicle and unexplained unavailability occurred in
November 2017, the same month she began a period of extended leave that ended
with her May 2018 resignation. IAF, Tab 4 at 102, Tab 18 at 12-14; HR at 49:00
(testimony of the appellant). The fact that less than 1 month passed between the
appellant being accused of misconduct and her initiating a lengthy absence ending
6
In its response to the petition for review, OPM also alleges that the appellant “has a
history of alcohol abuse, that apparently . . . had a flare up during her performance and
attendance issues at work.” PFR File, Tab 3 at 6. The administrative judge n oted “the
appellant’s history of overusing alcohol” in her decision. ID at 7. However, there is
nothing in the record to support OPM’s allegation that the appellant’s alcohol use
caused her performance and attendance issues. Moreover, as previously disc ussed, the
appellant has established that her conditions prevented her from performing the driving
requirements of her position. The Board will only consider medical conditions listed in
the appellant’s disability retirement application. Ballenger v. Office of Personnel
Management, 101 M.S.P.R. 138, ¶¶ 12-13 (2006) (clarifying that the Board may not
consider evidence relating to a medical condition that was never the subject of the
disability retirement application in question). Further, we decline to find that addiction
alone necessarily disqualifies an appellant from disability retirement based on other
medical conditions. See Bemiller v. Office of Personnel Management, 119 M.S.P.R.
653, ¶¶ 2, 8-16 (2013) (finding an appellant eligible for disability retirement based on
her fibromyalgia and chronic pain despite her prior dependency on Oxycodone and
Oxycontin).
17
in resignation casts some doubt on whether she stopped working for medical
reasons or to avoid potential discipline for her alleged serious misconduct. Dias
v. Department of Veterans Affairs, 102 M.S.P.R. 53, ¶ 16 (2006) (describing
absence without leave as a serious offense), aff’d per curiam, 223 F. App’x 986(Fed. Cir. 2007); Garcia v. Department of the Air Force, 34 M.S.P.R. 539, 540-42
(1987) (finding that an administrative judge improperly mitigated the penalty of
removal for two instances of willful unauthorized use of a Government -owned
vehicle). However, we find that the fact that she did not apply for a disability
retirement annuity until a year after her resignation, combined with the medical
evidence and her subjective reports of the effect of her myoclonus and depression
on her ability to drive, outweighs any such doubt. IAF, Tab 4 at 55-56, 79-81,
83-86; see Henderson, 109 M.S.P.R. 529, ¶ 21 (determining that although the
timing of an appellant’s disability retirement application was suspect, he
presented overwhelming medical evidence that corroborated his subjective
complaints and established that his medical condition was incompatible with
either useful and efficient service or retention in his former position ).
¶36 Lastly, on review, the appellant challenges the administrative judge’s
implicit finding that the appellant’s conditions are not disabling because , in
April 2019, she took a 3-day consulting job in India inspecting the manufacturing
process of meclizine and because she sells Christmas trees. ID at 12.
¶37 Subsequent work history is relevant to whether an individual’s condition is
confined to a single work environment. Confer, 111 M.S.P.R. 419, ¶ 16. One is
not entitled to a disability retirement annuity when one’s medical condition is
based on a single work environment, e.g., because it grew out of a personal
conflict with a supervisor or resulted from a perceived hostile work environment
due to workload or understaffing. Id. However, an appellant is not required to
show that her disability rendered her incapable of working all positions. Angel v.
Office of Personnel Management, 122 M.S.P.R. 424, ¶ 14 (2015). The relevant
position for determining the appellant’s qualification for disability retirement
18
benefits is the position she last held before filing her application. Id. Here, the
appellant testified that although the consulting job involved similar
responsibilities, it was less demanding and involved less pressure and scrutiny
than her Consumer Safety Officer position with the FDA because she worked
from a checklist, which the FDA does not use or provide to Consumer Safety
Officers. HR at 51:30 and 1:10:00 (testimony of the appellant); PFR File, Tab 1
at 12-13. She also stated that observation work in the consulting job was less
intense because people were not as nervous to see a consultant as they were to see
an FDA Consumer Safety Officer. HR at 1:10:00 (testimony of the appellant).
Most importantly, the consulting job did not require her to drive because she flew
to India and had an assigned driver while there. Id.¶38 With regard to the Christmas tree farm, the administrative judge relie d on a
December 2017 assessment completed by one of the appellant’s treating LCSWs,
stating, “she lives on a farm and does sell Christmas trees,” and the fact that the
appellant’s email address for the appeal contain ed the name of the farm, to
implicitly find that she was not disabled from working. ID at 12; IAF, Tab 1 at 1,
Tab 15 at 43. However, there is nothing in the record regarding the appellant’s
alleged involvement with this business and, on review, the appellant clarifies
without contradiction that her fiancé handles that business. PFR File, Tab 1
at 13. Therefore, we find that the appellant’s employment after her resignation
does not undermine the evidence that she was unable to work in her Consumer
Safety Officer position.
The appellant met her burden to prove that her conditions were expected to last
for at least 1 year from her May 2019 application for a disability retirement
annuity.
¶39 The administrative judge did not make a determination as to whether the
appellant met her burden to prove that her medical conditions were expected to
last for at least 1 year from her application for disability retirement. The parties
19
also do not address this issue on review. As discussed above, this is an element
of her burden. Thorne, 105 M.S.P.R. 171, ¶ 5.
¶40 Here, the appellant testified that her myoclonus is permanent, she has not
driven since 2018, and she no longer has a valid driver’s license due to her
myoclonic jerks. 7 HR at 12:20, 35:00 (testimony of the appellant). Also, in
September 2020, over a year after submitting her May 6, 2019 application, her
neurologist certified that her myoclonus and the associated symptoms are
expected to continue for a year. IAF, Tab 15 at 24. Similarly, on the appellant’s
FMLA request, her LCSW certified that she would be unable to work from
January 2018 through January 2019 due to her psychological conditions, which
the appellant testified were still present as of the hearing in October 2020. Id.
at 33; HR at 34:00 (testimony of the appellant). Thus, we find that the appellant
has proven that her conditions are expected to last for at least 1 year from her
application.
We disagree with the administrative judge that the appellant failed to meet her
burden to prove that accommodation of her conditions was unreasonable .
¶41 On review, the appellant argues that the administrative judge erred in
essentially finding that the appellant failed to establish that she could not be
accommodated because she resigned before the reasonable accommodation
process had been completed. PFR File, Tab 1 at 8-9; ID at 9-10. We agree with
the appellant.
¶42 An appellant must establish that she cannot be accommodated in her current
position and is not qualified for reassignment to a vacant position at the same
7
The administrative judge questioned whether the appellant failed to renew her license
or whether it was taken away by the state. ID at 12 & n.9. She suggested that if the
appellant failed to renew it after it expired, her lack of a license was not caused by her
medical conditions. Id. We are not persuaded that whether the appellant or the state
initiated her license loss is relevant to whether she lost it due to her myoclonus.
Therefore, we do not rely on this distinction here.
20
grade or level in which she could render useful and efficient service. 8 Pettye v.
Office of Personnel Management, 83 M.S.P.R. 260, ¶ 6 (1999); 5 C.F.R.
§ 844.103(a)(4). “[A]ccommodation requires adjustments that allow an employee
to continue to perform her official position.” Gooden v. Office of Personnel
Management, 471 F.3d 1275, 1279 (Fed. Cir. 2006) (citing, among other
authorities, 5 C.F.R. § 844.102 (“Accommodation means a reasonable adjustment
made to an employee’s job or work environment that enables the employee to
perform the duties of the position.”)). The Federal Circuit has held that “a
‘light-duty’ assignment which does not involve the critical or essential elements
of an employee’s official position cannot be considered an ‘accommodation.’”
Id.¶43 As discussed above, the appellant’s position required significant driving .
On February 26, 2018, the appellant’s neurologist provided medical
documentation in support of the appellant’s request to work from home “due to
limitations on driving for long periods of time.” IAF, Tab 15 at 25. The
appellant sought reasonable accommodation later that month, requesting full -time
telework. IAF, Tab 18 at 4, 36. The agency did not offer the appellant
reasonable accommodation while she was employed. IAF, Tab 4 at 79, Tab 18
at 36. On May 7, 2018, the appellant resigned, and therefore the agency closed
her accommodation request file. IAF, Tab 4 at 74-46, Tab 18 at 36; HR at 42:00
(testimony of the appellant). However, on May 1, 2018, a labor relations
specialist advised the appellant’s supervisor that “the [reasonable accommodation
request] in of itself seems almost improper since [the agency’s equal employment
opportunity] office has information about this employee not being able to perform
all the essential functions of her position.” IAF, Tab 18 at 113 (emphasis added).
8
The agency did not offer the appellant reassignment. IAF, Tab 18 at 35. Therefore,
we agree with the administrative judge she met to this element of her burden to prove
eligibility for a disability retirement annuity. ID at 9-10; Thorne, 105 M.S.P.R. 171,
¶ 5.
21
¶44 When an agency certification that accommodation is unavailable is
unrebutted and the record supports the conclusion that accommodation would not
be possible, the Board has held that this criterion for obtaining disability
retirement is met. Chavez v. Office of Personnel Management, 111 M.S.P.R. 69,
¶ 15 (2009). Here, in describing the reasonable accommodation efforts made by
the FDA, the appellant’s supervisor observed, in essence, that the appellant’s
medical conditions prevented her from “perform[ing] the functions of her job as
described in her position description.” IAF, Tab 18 at 34, 36. Based on the
FDA’s unrebutted belief that the appellant could not be provided with a
reasonable accommodation to perform her duties and the evidence of record that
the appellant could not drive as required for her job, we find that the appellant
met her burden to prove that she could not be reasonably accommodated in her
position of record.
¶45 Accordingly, we REVERSE the administrative judge’s initial decision and
OPM’s reconsideration decision.
ORDER
¶46 We ORDER OPM to award the appellant disability retirement. OPM must
complete this action no later than 20 days after the date of this decision.
¶47 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
¶48 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
22
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
¶49 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113(c)).
NOTICE OF APPEAL RIGHTS 9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
9
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
23
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
24
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
25
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
26
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.