                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID M. RYDER,                                 DOCKET NUMBER
                  Appellant,                         PH-844E-13-1894-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 9, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Cornelius J. P. Sullivan, Esquire, Mattapan, Massachusetts, for the
             appellant.

           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 appellant has filed a petition for review of the initial decision, which
     affirmed the Office of Personnel Management’s (OPM) reconsideration decision


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     denying the appellant’s application for disability retirement under the Federal
     Employees’ Retirement System (FERS). Generally, we grant petitions such as
     this one only 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).
¶2         The appellant was a City Letter Carrier with the United States Postal
     Service. Initial Appeal File (IAF), Tab 4 at 21. He resigned from employment on
     June 22, 2011, id. at 22, and applied to OPM for FERS disability retirement
     annuity benefits, id. at 19-28, 174-79. In his application, he based his request for
     benefits on the following conditions:      bipolar disorder, chronic post-traumatic
     stress disorder (PTSD), depression, anxiety, work-related stress, mood lability, 2




     2
       Mood lability is a term used in the field of psychology to refer to a poorly-modulated
     emotional response that falls outside the conventionally accepted range and may be
     marked by a great fluctuations in mood. See Theodore P. Beauchaine et al., Polyvagal
     Theory and Developmental Psychopathology: Emotion Dysregulation and Conduct
     Problems from Preschool to Adolescence, 74 B IOLOGICAL P SYCHOLOGY 2, 174-84
     (2007).
                                                                                              3

     colitis, 3 hypertension, IgA nephropathy, 4 tinnitus, 5 hypothyroidism, kidney cysts,
     and cardiac arrest.      Id. at 19.   OPM issued an initial decision denying the
     appellant’s application for disability retirement benefits.           Id. at 13-17.    The
     appellant requested reconsideration and OPM again denied his request for
     disability retirement benefits. Id. at 4-8. The appellant filed an appeal of OPM’s
     reconsideration decision. IAF, Tab 1. In an initial decision, the administrative
     judge affirmed OPM’s reconsideration decision. IAF, Tab 17, Initial Decision
     (ID) at 1, 14. The appellant has filed a petition for review. Petition for Review
     (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶3          An individual bears the burden of proving by preponderant evidence his
     entitlement to disability retirement.          Henderson v. Office of Personnel
     Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(a)(2). 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, while employed in a
     position subject to FERS, must 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;

     3
         Colitis is inflammation of the large intestine.        George Longstreth, Colitis,
     M EDLINE P LUS (Oct. 13, 2013), http://www.nlm.nih.gov/medlineplus/ency/article/
     001125.htm.
     4
       IgA nephropathy is a kidney disease that occurs when an antibody called
     immunoglobulin A (IgA) lodges in the kidneys and results in local inflammation. IgA
     Nephropathy, M AYO C LINIC (Apr. 19, 2013), http://www.mayoclinic.org/diseases-
     conditions/iga-nephropathy/basics/definition/CON-20034366.
     5
       Tinnitus is noise or ringing in the ears. Tinnitus, M AYO C LINIC (Feb. 5, 2013),
     http://www.mayoclinic.org/diseases-conditions/tinnitus/basics/definition/con-20021487.
                                                                                      4

     (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. Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R.
     § 844.103(a); see 5 U.S.C. § 8451(a).
¶4        The Board has held that there are two ways to meet the statutory
     requirement that the individual “be unable, because of disease or injury, to render
     useful and efficient service in the employee’s position”; namely, by showing that
     the medical condition: (1) caused a deficiency in performance, attendance, or
     conduct; or (2) is incompatible with useful and efficient service or retention in
     the position. Henderson v. Office of Personnel Management, 117 M.S.P.R. 313,
     ¶ 16 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see also
     Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012) (finding
     that the standard is the same under both the Civil Service Retirement System and
     FERS).    Under the first method, an individual can establish entitlement by
     showing that the medical condition affects his ability to perform specific work
     requirements or prevented him from being regular in attendance or caused him to
     act inappropriately.   Henderson, 117 M.S.P.R. 313, ¶ 16.       Under the second
     method, an individual can establish entitlement by showing 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.
¶5        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 individual’s condition on his ability to perform
     the duties of his position. Id., ¶ 19. The ultimate question, based on all relevant
     evidence, is:   Do the individual’s medical impairments preclude him from
     rendering useful and efficient service in his position? Id., ¶ 20. This question
     must be answered in the affirmative if the totality of the evidence makes that
     conclusion more likely to be true than not true. Id.
                                                                                               5

¶6           Here, the administrative judge properly considered the totality of the
     evidence and concluded that the appellant failed to prove by a preponderance of
     the evidence that his medical condition prevented him from rendering useful and
     efficient service in his former position.
¶7           In his petition for review, the appellant argues that the administrative judge
     erred by substituting his opinion for the agency’s opinion as expressed in the
     Supervisor’s     Statement    and   Agency    Certification    of        Reassignment   and
     Accommodation Efforts. PFR File, Tab 1 at 2; see IAF, Tab 4 at 21-26 (Standard
     Forms 3112B and 3112D). The appellant claims that the agency “certified that
     the appellant could not provide [useful and efficient] service.” PFR File, Tab 1
     at 2.    We disagree.    The agency did not certify that the appellant could not
     provide useful and efficient service.       See IAF, Tab 4 at 21-26.           Instead, the
     appellant’s supervisor stated in the Supervisor’s Statement his opinion that the
     appellant has had unacceptable conduct since October 2006. See id. at 21-23.
     The Supervisor’s Statement does not prove that the appellant had a medical
     condition that caused his unacceptable conduct, nor does it suggest that the
     appellant’s supervisor believed that the appellant’s unacceptable conduct was
     caused by a medical condition.        Moreover, the appellant was diagnosed with
     bipolar disorder and PTSD on April 26, 2011, more than 5 years after
     October 2006. Id. at 84. The diagnosing psychiatrist also noted that the appellant
     never needed treatment for his bipolar disorder or PTSD until his diagnosis. Id.
     at 74, 76.     Therefore, the Supervisor’s Statement concerning the appellant’s
     unacceptable conduct is not dispositive and the administrative judge did not
     improperly substitute his opinion for the agency’s opinion. As a result, we agree
     with the administrative judge that the appellant failed to meet the statutory
     requirement of 5 U.S.C. § 8451(a)(1)(B) to show that his medical condition
     caused     a   deficiency    in   performance,   attendance,        or     conduct.     See
     Henderson, 117 M.S.P.R. 313, ¶ 16.
                                                                                           6

¶8         The appellant also claims on review that the administrative judge
      erroneously discounted the appellant’s subjective evidence. PFR File, Tab 1 at 2.
      Contrary to the appellant’s claim, the administrative judge explicitly expressed
      his disagreement with OPM’s insistence that a psychological disability must be
      supported by objective evidence. ID at 12. Even though the medical opinions of
      psychiatrists are based primarily on the appellant’s own descriptions of symptoms
      and indicia of disability, OPM still must consider such medical evidence. See
      Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed.
      Cir. 2007). The administrative judge properly considered the appellant’s affidavit
      and description of his symptoms as told to health care providers, ID at 3, 6-9, in
      concluding that the appellant failed to prove that his medical condition was
      disabling or incompatible with useful and efficient service, ID at 12-13. Thus,
      the administrative judge properly considered all pertinent evidence in the record,
      including the appellant’s subjective evidence of pain and disability.
¶9         Next, the appellant argues that the administrative judge should not have
      considered the improvement of the appellant’s mental health to mean that he has
      fully recovered. PFR File, Tab 1 at 2-3. The administrative judge did not state
      that the appellant was fully recovered and recognized that the appellant’s
      treatment is ongoing. See ID at 13. However, the administrative judge properly
      considered the extent to which the appellant’s disability could or could not be
      controlled. Id.; see Smedley v. Office of Personnel Management, 108 M.S.P.R.
      31, ¶ 23 (2008).     Thus, the administrative judge properly considered the
      appellant’s mental health improvement with therapy and medicine to determine
      whether the appellant proved an inability to provide useful and efficient service.
¶10        Further, the appellant objects to the administrative judge’s consideration of
      the appellant’s ability to work for his family business. PFR File, Tab 1 at 2. The
      appellant distinguishes his ability to work for his family business from his
      inability to work for the agency, given the less-stressful work environment and
      accommodating nature of his family business.         Id.   We recognize that the
                                                                                         7

      appellant’s work for his family business might differ from his work at the agency.
      See, e.g., Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶¶ 15-16
      (2009) (the appellant’s position after her resignation entailed very different
      responsibilities from her former agency position).      In fact, the administrative
      judge gave adequate consideration to the appellant’s testimony on his work for
      his family business.      ID at 3-4.   However, the administrative judge properly
      considered evidence concerning the appellant’s subsequent work history as
      support for the conclusion that the appellant’s medical conditions were amenable
      to control.   ID at 13.    Thus, the administrative judge properly considered the
      appellant’s ability to work for his family business in concluding that the appellant
      did not show an inability to provide useful and efficient service in his former
      government position.
¶11         The appellant, moreover, restates that he was awarded social security
      disability benefits by the Social Security Administration (SSA). PFR File, Tab 1
      at 2. To the extent that the appellant is claiming that the administrative judge did
      not properly consider the SSA award, he is mistaken. The administrative judge
      explicitly addressed the appellant’s receipt of SSA benefits in the initial decision.
      ID at 13-14. Although the Board must consider SSA decisions in adjudicating
      disability retirement cases, it is not bound by such decisions. Givens v. Office of
      Personnel Management, 95 M.S.P.R. 120, ¶ 9 (2003). Additionally, where there
      is no indication as to the basis for the SSA determination, the determination is not
      a significant factor in deciding an OPM disability retirement appeal.            See
      Confer, 111 M.S.P.R. 419, ¶ 6. Because the basis for the appellant’s SSA award
      in this appeal was unclear, see ID at 13-14, the administrative judge properly
      considered the SSA award to be of little probative value.
¶12         Although the appellant asserts on review that the agency could not provide
      him with reasonable accommodations, PFR File, Tab 1 at 2, we need not address
      this claim because he failed to establish that he was unable, because of disease or
      injury, to render useful and efficient service in his former position, see 5 U.S.C.
                                                                                        8

      § 8451(a)(1)(B); Guthrie v. Office of Personnel Management, 105 M.S.P.R. 530,
      ¶ 13 (2007) (arguments about accommodation need not be considered when the
      appellant did not demonstrate that she had a disabling condition that would
      require any accommodation).        Likewise, we need not address whether the
      appellant established the other eligibility requirements for disability retirement,
      i.e., whether the disabling medical condition was expected to continue for at least
      1 year from the date the disability retirement benefits application was filed, and
      whether the appellant declined an offer of reassignment to a vacant position.
      See 5 C.F.R. § 844.103(a).
¶13         In conclusion, we find that the appellant has not provided a reason to
      disturb the administrative judge’s decision affirming OPM’s denial of the
      appellant’s application for disability retirement.

                      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
      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
                                                                                9

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.
