Gouldner v. Office of Personnel Management , 180 F. App'x 913 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3318
LINDA M. GOULDNER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
________________________
DECIDED: April 10, 2006
________________________
Before RADER, SCHALL, and GAJARSA, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) affirmed the Office of Personnel
Management’s (OPM’s) reconsideration decision denying Ms. Gouldner’s application for
disability retirement under the Federal Employees Retirement System (FERS).
Gouldner v. Office of Pers. Mgmt., No. AT-844E-04-0150-I-1 (M.S.P.B. June 15, 2005)
(Board Opinion). Because this record shows no reversible errors, this court affirms.
I.
Ms. Gouldner was as a Finance Clerk, Level 6, with the United States Postal
Service until she resigned on April 3, 2005, following a criminal investigation for theft of
postal funds and property. On May 28, 2002, during investigation, she was placed on
leave without pay. During this time, Ms. Goulder applied for disability retirement
claiming an inability to work since June 2002 because of “depression, migraine
headaches, stress, anxiety, sleep disorder and paranoia.” In 1999, Ms. Gouldner’s
family physician, Dr. Thomas N. Anderson, diagnosed her as suffering from depression
and began treating her for anxiety and depression. In August 2002, Ms. Gouldner
began seeing Dr. Margaret R. Mortensen, Ph.D. in Clinical Psychology. Id. The reports
and testimony of Dr. Mortensen diagnosed Ms. Gouldner with major depression and
post-traumatic stress disorder due to family abuse.
On March 5, 2003, OPM denied Ms. Gouldner’s request for disability retirement
because she did not meet the disability eligibility requirements. Ms. Gouldner requested
reconsideration by OPM. After reconsideration, on October 20, 2003, OPM affirmed the
original decision. Ms. Gouldner proceeded to file an appeal with the Board. On March
26, 2004, the Board affirmed OPM’s decision and concluded that Ms. Gouldner did not
show that she is disabled from useful and efficient service. Board Decision, slip op. at
4. Ms. Gouldner has now filed a review with this court.
II.
This court possesses limited authority to review an appeal from the Board. The
Board’s decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the 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) (2000); see Briggs v. Merit Sys. Protection
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). “Substantial evidence” is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
05-3318 2
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). This court cannot
review the factual underpinnings of a decision by OPM to deny an application for
disability retirement under FERS. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791
(1985). This court may only review the determinations in disability benefit cases to
ascertain whether “there has been a substantial departure from important procedural
rights, a misconstruction of the governing legislation, or some like error going to the
heart of the administrative determination.” Id. (citation and quotes omitted).
Ms. Gouldner primarily complains about the factual determinations made in the
denial of her application. This court cannot review those factual underpinnings of
OPM’s denial.
Ms. Gouldner has claimed that the Board did not take into account, or properly
weigh, evidence in her in favor. Again, this court cannot review these factual
considerations.
Ms. Gouldner also alleges that the Board did not consider some evidence that
would have aided her case. Ms. Gouldner does not explain or provide any proof that
any new evidence was rejected by the Board or ever provided at any stage of her
proceedings. Again, this court cannot review new evidence. In any event, Ms.
Gouldner’s allegation is insufficient to demonstrate a reversible error.
Ms. Gouldner claims that the Board incorrectly based its decision on the
assumption that she wrote her petition to the Board. Id. Even assuming that the Board
made an incorrect assumption, the Board’s decision is, nevertheless, supported by
substantial evidence. The Board stated Ms. Gouldner “failed to show that she could not
perform the duties of her position as a result of those disorders or that she is otherwise
05-3318 3
generally foreclosed from employment as a result of those disorders.” Board Decision,
slip op. at 5. The Board also noted that Dr. Mortensen did not foreclose Ms. Gouldner’s
return to work or testify that the disability was permanent. Id. Additionally, the Board
pointed out that Ms. Gouldner was employed at the time of the decision. Id. Finally, the
Board’s reference to “the writer” of Ms. Gouldner’s petition was not a basis for its
decision, but was merely a passing comment, as shown by the fact that this comment
begins with “further;” follows many pages of the Board’s factual findings; and also
follows a lengthy paragraph that contains the Board’s determination with its many bases
therefor. Id. As a result, substantial evidence supports the Board’s decision.
Because Ms. Gouldner has not demonstrated any substantial departure from
important procedural rights, any misconstruction of the governing legislation, or any
error going to the heart of the administrative determination, this court affirms.
05-3318 4