Donna K. Sharlofsky v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA K. SHARLOFSKY, DOCKET NUMBER
Appellant, PH-844E-13-0463-I-1
v.
OFFICE OF PERSONNEL DATE: August 15, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donna K. Sharlofsky, Summerton, South Carolina, pro se.
Thomas L. Styer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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 its reconsideration decision that denied the
appellant’s application for Federal Employees’ Retirement System (FERS)
disability retirement benefits. Generally, we grant petitions such as this one only
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In May 2012, the appellant filed a disability retirement application under
FERS based on rheumatoid arthritis and back pain. See Initial Appeal File (IAF),
Tab 5 at 26-27. OPM denied her application in initial and reconsideration
decisions. See id. at 4-6 (reconsideration decision), 20-23 (initial decision). The
appellant filed a Board appeal, and a hearing was held. IAF, Tab 1; Hearing CD.
The administrative judge issued an initial decision, in which she reversed OPM’s
reconsideration decision and found that the appellant was entitled to disability
retirement benefits. IAF, Tab 16, Initial Decision (ID). OPM filed a petition for
review, and the appellant filed a brief response. Petition for Review (PFR) File,
Tabs 1, 3. In its petition, OPM asserts that: (1) there is a dearth of medical
evidence to support the appellant’s subjective complaints of disability prior to her
resignation; (2) the administrative judge ignored certain conflicting evidence and
misapplied the law in considering the appellant’s post-separation medical
3
evidence; and (3) the issues of accommodation and reassignment are moot
because the appellant failed to establish a disabling medical condition. We have
considered OPM’s arguments on review, but none warrant a different outcome.
¶3 On review, OPM asserts that there is “no evidence showing any
disability prior to [the appellant’s] resignation,” and it contends that the
administrative judge’s analysis was inconsistent with Newkirk v. Office of
Personnel Management, 101 M.S.P.R. 667 (2006), Caponetto v. Office of
Personnel Management, 12 M.S.P.R. 330 (1982), and Shanoff v. Office of
Personnel Management, 103 M.S.P.R. 549 (2006), because there was no
competent medical evidence to support and corroborate her claim of disability.
PFR File, Tab 1 at 5 (emphasis in original). OPM acknowledges, however, that
the appellant produced a May 17, 2012 medical report, which predated her
resignation. Id. This report stated, among other things, that: (1) the appellant
was a patient since 2009; (2) she was diagnosed with rheumatoid arthritis in
2002; (3) she has pain in her ankle, back, knee, shoulder, and arm; (4) her range
of motion decreased due to chronic pain; (5) she was in a motor bike accident in
2011, which resulted in two broken vertebrae and a fractured right forearm; (6)
she was given anti-inflammatories and pain medications but they did not help her
pain; (7) she cannot sit or stand for longer than 45 minutes or “type in a
continuous manner due to pain”; and (8) she was not recommended to work
“[g]iven the progression of the arthritis.” IAF, Tab 5 at 38-39. Moreover, the
appellant testified, credibly and without contradiction, regarding the progression
of her rheumatoid arthritis and back condition, her pain and physical limitations,
her inability to perform virtually any of her Supply Technician duties, and her
attempts to obtain additional medical records from her doctors to support her
disability retirement application. Hearing CD.
¶4 We find that the May 17, 2012 report constitutes competent medical
evidence to support the appellant’s application for disability retirement. See
Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed.
4
Cir. 2007) (“[A]n 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.”). Importantly, the Board has held that medical conclusions
based on a long familiarity with a patient are of greater weight than those based
on a brief association. Tan-Gatue v. Office of Personnel
Management, 90 M.S.P.R. 116, ¶ 11 (2001), aff’d, 52 F. App’x 511 (Fed. Cir.
2002). The May 17, 2012 medical report was written by a doctor who had seen
the appellant for 3 years, and the appellant testified that she saw him almost
monthly prior to her resignation. See IAF, Tab 5 at 38-39; Hearing CD.
¶5 OPM also claims that the initial decision was inconsistent with Rapp v.
Office of Personnel Management, 108 M.S.P.R. 674 (2008), which required the
Board to consider contrary or conflicting medical evidence. See PFR File, Tab 1
at 5-6. In this regard, OPM notes that the appellant certified that she was unable
to walk or stand due to her medical condition, but the June 4, 2013 medical report
states that the appellant is able to “walk and hike without any complaints,” her
gait is “normal,” and the doctor advised the appellant to “Turn Your Walk Into a
Workout.” Id. at 6 (emphasis in original). Compare IAF, Tab 5 at 26 (the
appellant’s application), with IAF, Tab 12 (the June 4, 2013 report).
¶6 The administrative judge did not note these portions of the June 4, 2013
report in the initial decision. However, the administrative judge’s failure to
mention all of the evidence of record does not mean that she did not consider it in
reaching her decision. Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). We have considered these alleged inconsistencies, but they do not
warrant a different outcome. For instance, the appellant does not state in her
application for disability retirement that she was unable to walk or stand at all;
rather, she asserted that she has “difficulty walking” and she was “unable to sit or
stand for long periods of time.” IAF, Tab 5 at 26.
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¶7 The June 4, 2013 report states that the appellant “[e]xercises
regularly-walks three times a day with dog,” “can hike without [shortness of
breath],” and, in the “Pt Education” section, states “Turn Your Walk Into a
Workout.” See IAF, Tab 12. However, the appellant testified that the “walk”
with the dog involved going into her backyard for 10 minutes, and she stated that
her backyard is a flat surface. Hearing CD. She also testified that she did not tell
the doctor that she participates in hiking; rather, she stated that, while she used to
exercise and hike, she was no longer able to exercise at all, and she explained that
even physical therapy was “too hard on [her] hands” and it “upped” her blood
pressure. Id. In her response to the petition for review, the appellant states that
the reference to “Turn Your Walk Into a Workout” was a flyer that the doctor
gave to every patient. See PFR File, Tab 3. Finally, we find that the statement
that the appellant’s gait is “normal” is not inconsistent with her testimony or
medical evidence supporting her claim of disability retirement. For these reasons,
we are not persuaded that this evidence calls into question the appellant’s
veracity.
¶8 OPM also contends that the administrative judge improperly considered
post-separation evidence, i.e., the June 4, 2013 medical report. See PFR File, Tab
1 at 6-7 (citing Reilly v. Office of Personnel Management, 571 F.3d 1372,
1381-83 (Fed. Cir. 2009)). OPM asserts that this medical information is
probative “only if” it links the condition to the time while the employee was
covered under FERS, but the June 4, 2013 report does not satisfy this criteria: it
is over 1 year past her resignation date, it discusses conditions that are not the
subject of her disability retirement application, and it discusses her condition
after she resigned, not when she was in a position covered under FERS. Id.(emphasis in original).
¶9 In Reilly, our reviewing court held that the Board erred in adopting a
categorical rule barring consideration of post-retirement evidence. Reilly, 571
F.3d at 1382. Rather, the court noted that, “[w]here proximity in time, lay
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testimony, or some other evidence provides the requisite link to the relevant
period the subsequent medical evidence can be very probative of a prior
disability.” Id. Here, we find that the June 4, 2013 report has probative value
because it corroborated the appellant’s testimony regarding the pain and other
disabling symptoms stemming from her rheumatoid arthritis that she was
experiencing at the time of her resignation in May 2012. 2
¶10 Finally, we are not persuaded by OPM’s contention that the accommodation
and reassignment issues are moot because the appellant did not prove that she had
a disabling condition. PFR File, Tab 1 at 7-8. The administrative judge carefully
considered the record evidence and concluded that the appellant met her burden in
this regard. See ID at 8-12. We discern no reason to disturb her findings. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to
disturb the administrative judge’s findings where the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶11 We have considered OPM’s assertion that the Supervisor Statement
contradicts the Agency Certification of Reassignment and Accommodation
Efforts, and that, pursuant to Sucic v. Office of Personnel
Management, 64 M.S.P.R. 281 (1994), the appellant’s supervisor’s statement
should be entitled to more weight. PFR File, Tab 1 at 7-8. Compare IAF, Tab 5
at 29-31 (the Supervisor Statement states that there was no record of a request
from the appellant or document that a special accommodation was needed or that
the appellant has a disability), with id. at 35-36 (the agency certified that “the
medical evidence presented to the agency shows that accommodation is not
possible due to severity of medical condition and the physical requirements of the
2
We only consider the June 4, 2013 medical report as it relates to the conditions that
the appellant identified in her disability retirement application, i.e., rheumatoid arthritis
and back pain.
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position” and that reassignment is not possible). The appellant, in her testimony,
admitted that she did not recall if she made any written accommodation requests
to her supervisor, but she testified without contradiction that the agency provided
her with various accommodations, in the form of no travel, a special keyboard,
and a foot stool. Hearing CD. She also testified that her supervisor was well
aware of her condition, expressed concern to her about the toll that the condition
was taking on her, and had even recommended that she stop working. Id.¶12 In Sucic, 64 M.S.P.R. at 284-87, the Board determined that the testimony of
the individuals who worked with the appellant “was entitled to greater weight
than [the] statement in the Agency Certification that the Postal Service could not
accommodate the appellant.” In the initial decision, the administrative judge
similarly determined that the Supervisor Statement was entitled to less weight in
light of other evidence in the record, including the appellant’s own testimony.
See ID at 11-14. Although the administrative judge did not cite to Hillen v.
Department of the Army, 35 M.S.P.R. 453 (1987), we note that the contradiction
of one version of events by other evidence is a proper factor for making a
credibility determination. See Hillen, 35 M.S.P.R. at 458. We therefore discern
no error with the administrative judge’s decision in this regard.
ORDER
¶13 Based on the above reasons, we ORDER OPM to grant the appellant’s
application for disability retirement. OPM must complete this action no later than
20 days after the date of this decision.
¶14 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board's Order and of 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).
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¶15 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 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).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
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
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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 a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board 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.