                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ATEF S. GERGAWY,                                DOCKET NUMBER
                   Appellant,                        SF-844E-13-1821-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 7, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

            Robert R. McGill, Esquire, Walkersville, Maryland, for the appellant.

            Linnette Scott, 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’s) reconsideration decision
     denying his application for a Federal Employees’ Retirement System (FERS)
     disability retirement annuity. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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      The appellant worked for the Department of the Army as an Assistant
     Professor teaching a foreign language. Initial Appeal File (IAF), Tab 4 at 78,
     86. He was removed from his position effective November 23, 2011, for conduct
     unbecoming a federal employee, including resisting his arrest at work by local
     police on domestic violence charges in April 2011, and pleading nolo contendere
     to the felony of assault with a deadly weapon in July 2011. Id. at 75-78. On
     December 15, 2011, the appellant applied for FERS disability retirement,
     claiming a disability arising from bipolar disorder. Id. at 44, 49, 104-07. In both
     its initial and reconsideration decisions, OPM denied the appellant’s application.
     Id. at 7-10, 43-48.
¶3      The appellant timely filed this appeal. IAF, Tab 1. After holding a telephonic
     hearing, the administrative judge affirmed OPM’s reconsideration decision.
     IAF, Tab 12, Initial Decision (ID).      The appellant has submitted a timely
                                                                                       3

     petition for review, to which the agency has responded. Petition for Review
     (PFR) File, Tabs 1, 3.    O n r e v i e w , t he appellant has provided a previously
     unavailable determination by the Social Security Administration (SSA), granting
     him disability benefits. PFR File, Tab 4. Based on this submission, we sent an
     order to the parties, which instructed the appellant to file evidence and argument
     in support of his assertion that he is entitled to disability retirement benefits.
     PFR File, Tab 6 at 1-2. In addition, we instructed OPM to file medical data or
     other evidence of the appellant’s disability provided to them by SSA. Id. at 2.
     Both parties have responded. PFR File, Tabs 9-10.

     The administrative judge correctly found that the appellant is not entitled to a
     disability retirement annuity.
¶4      The appellant argued below that he was medically disabled from performing
     the essential elements of his job and that no accommodations were or are possible
     with respect to his medical disabilities, which he described as primarily bipolar
     disorder “with attendant symptomatologies.” IAF, Tab 6 at 4-5. On petition for
     review, the appellant argues that the administrative judge erred in finding that he
     failed to meet his burden to prove (1) his bipolar disorder caused the misconduct
     that led to his removal, and (2) that the condition is incompatible with either
     useful and efficient service or retention in his position. PFR File, Tab 1 at 5-8;
     ID at 11-13. He asserts, in this regard, that the administrative judge should have
     credited the testimony and medical documentation from his personal psychiatrist.
     PFR File, Tab 1 at 8-9.
¶5      In an appeal from an OPM decision on a voluntary disability retirement
     application, the appellant bears the burden of proof by preponderant evidence.
     Christopherson v. Office of Personnel Management, 119 M.S.P.R. 635, ¶ 6
     (2013); 5 C.F.R. § 1201.56(a)(2).     To be eligible for a disability retirement
     annuity, an employee must show the following: (1) he completed at least 18
     months of creditable civilian service; (2) while employed in a position subject
     to FERS, he became disabled because of a medical condition, resulting in a
                                                                                           4

     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; 2 (3) the disabling condition is
     expected 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) he did not
     decline   a   reasonable     offer   of   reassignment     to   a   vacant    position.
     Christopherson, 119 M.S.P.R. 635, ¶ 6; see 5 U.S.C. § 8451(a); 5 C.F.R. §
     844.103(a).   The administrative judge found that the appellant failed to meet
     element (2) of this test. 3 See ID at 12-13. We agree.

            The appellant has not shown that he had a deficiency in performance,
            conduct, or attendance caused by bipolar disorder.
¶6       An appellant can establish that his medical condition caused a deficiency in
     performance, attendance, or conduct by showing that it affected his ability to
     perform specific work requirements, prevented him from being regular in
     attendance, or caused him to act inappropriately. Henderson, 117 M.S.P.R. 313,
     ¶ 16. We agree with the administrative judge that the appellant did not show that




     2
       As the appellant argues, he need only prove one of these two alternatives under
     element (2). See PFR File, Tab 1 at 8 (arguing this point); see also Henderson v. Office
     of Personnel Management, 117 M.S.P.R. 313, ¶ 16 (2012) (explaining this requirement
     in the context of the Civil Service Retirement System); accord Jackson v. Office of
     Personnel Management, 118 M.S.P.R. 6, ¶ 7 (2012) (applying this same rule to
     disability retirements under FERS).
     3
       The administrative judge found, and we agree, that the appellant met element (1) of
     this test, the 18-month service requirement for a disability annuity. ID at 3. The
     appellant’s service computation date is March 29, 1999, and he was removed on
     November 23, 2011. IAF, Tab 4 at 78. We do not address elements (3), (4), or (5) of
     the test, because we find, as discussed below, that the appellant does not meet element
     (2).
                                                                                           5

     his bipolar disorder caused the misconduct through July 2011 that ultimately led
     to his removal. 4 ID at 12.
¶7       The appellant must show that his condition caused his misconduct.               See
     Johnson v. Office of Personnel Management, 87 M.S.P.R. 192, ¶ 19 (2000)
     (finding that an appellant did not show entitlement to a disability annuity where
     there was no evidence that his disability caused the alleged misconduct); Peterson
     v. Office of Personnel Management, 81 M.S.P.R. 211, ¶ 5 (1999) (the appellant
     established that he was entitled to disability retirement where the evidence
     showed that his severe mental condition included delusions that caused him to be
     a danger to himself or others). Removal for misconduct does not preclude an
     individual’s receipt of disability retirement benefits if he can show that he was
     disabled prior to the effective date of his removal.         Henderson v. Office of
     Personnel Management, 109 M.S.P.R. 529, ¶ 9 (2008). However, an appellant’s
     application for disability retirement in the face of an impending removal for
     misconduct may cast doubt upon the veracity of his application. Id.
¶8       A determination regarding entitlement to disability retirement benefits must
     consider objective clinical findings, diagnoses and medical opinions, subjective
     evidence of pain and disability, evidence relating to the effect of the applicant’s
     condition on his ability to perform in the grade or class of position last occupied,
     and evidence that the applicant was not qualified for reassignment to a vacant
     position at the same grade or level as the position he last occupied.          Nash v.
     Office of Personnel Management, 92 M.S.P.R. 527, ¶ 7 (2002).
¶9       Student evaluations, dated March 22, 2011, reflect a decline in the appellant’s
     ratings. IAF, Tab 4 at 25, 28-30. For example, one student reported that he
     frequently made inappropriate comments, while another commented that his


     4
       On review, the appellant does not dispute the administrative judge’s finding that his
     attendance and performance were acceptable. PFR File, Tab 1 at 6-7; ID at 9-11. He
     continues to assert, as he did below, that his bipolar disorder caused his poor behavior
     and conduct. PFR File, Tab 1 at 5-8; ID at 7.
                                                                                       6

      “emotions or moods [a]ffect the way he teaches.” Id. at 29-30. Subsequently, the
      appellant’s employing agency issued a notice of warning on March 30, 2011, due
      to “student reported gender-related comments.” Id. at 76. On April 8, 2011, the
      agency issued a letter of reprimand for “disrespectful, unsafe behavior toward a
      female supervisor and disregard for established policies and procedures.”       Id.
      The agency indefinitely suspended the appellant on May 20, 2011, due to his
      arrest at work. Id.
¶10      The appellant’s personal psychiatrist, who began treating him in October 2008
      opined that the appellant was permanently disabled beginning in May 2011
      despite treatment and could no longer perform his work duties. Hearing Compact
      Disk (HCD). He also expressed the opinion that the domestic violence charge
      that led to the appellant’s arrest at work was related to the appellant’s bipolar
      disorder because this condition caused his irritability and anger. Id. According
      to the doctor, the appellant’s anger was “fairly well controlled,” but, in 2011, it
      was “out of control for a while.” Id. The appellant similarly testified that, in
      2010, his symptoms increased and he had incidences with supervisors and
      students. Id. He stated that he could not handle the stress of interacting with
      others at work. Id. However, the appellant and his psychiatrist did not explain
      how or why the condition allegedly worsened in 2010 or 2011.          Further, the
      psychiatrist’s testimony appears to suggest that the appellant’s condition
      stabilized subsequent to adjustments with his medication.
¶11      The appellant’s incidences of prior discipline and decline in student ratings
      alone do not meet his burden of showing that his bipolar disorder caused the
      misconduct through July 2011 for which he was removed. Cf. Hardy v. Office of
      Personnel Management, 98 M.S.P.R. 323, ¶ 15 (2005) (although the appellant’s
      former supervisor mentioned the appellant’s extended absences that led to her
      removal, without an explanation regarding how the appellant’s medical condition
      affected her attendance, absence alone cannot establish disability). Further, the
      appellant has not shown why his longstanding mental condition suddenly
                                                                                         7

      deteriorated   in    May     2011.       See   Wall    v.   Office   of   Personnel
      Management, 116 M.S.P.R. 188, 195 (2010) (finding that the appellant did not
      establish disability because, among other reasons, neither the appellant nor a
      nurse practitioner explained the sudden deterioration of his condition), aff’d, 417
      F. App’x 952 (Fed. Cir. 2011). In light of the lack of evidence of causation, the
      absence of an explanation for the appellant’s worsening condition, and the fact
      that his claim of disability arose only after he was removed, we find that the
      appellant has not proven that his condition resulted in his misconduct.

            The appellant has not shown that his condition is incompatible with either
            useful and efficient service or retention in his previous position.
¶12      The appellant argues that, in finding that he failed to show that his condition
      was incompatible with rendering service in his position, the administrative judge
      failed to give proper weight to the medical evidence. See PFR File, Tab 1 at 7-9;
      ID at 11-12. We disagree.
¶13      An appellant can show that his medical condition is incompatible with useful
      and efficient service or retention in the position by showing that it is inconsistent
      with working in general, working in a particular line of work, or working in a
      particular type of setting. Henderson, 117 M.S.P.R. 313, ¶ 16. In determining
      whether this burden is met, the Board looks at 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 his ability to
      perform. Id. The ultimate question, based on all relevant evidence, is: Do the
      employee’s medical impairments preclude him from rendering useful and
      efficient service in his position? Id. ¶ 20.
¶14      Although the appellant’s psychiatrist claimed that the appellant was disabled
      beginning in May 2011, his medical reports also suggested that the appellant’s
      condition could be controlled, undermining a finding of disability.              See
      Johnson, 87 M.S.P.R. 192, ¶ 21 (a disability annuitant claimant must establish the
      extent to which his disability can or cannot be controlled). As the administrative
                                                                                        8

      judge indicated, in a letter dated May 23, 2011, the doctor noted that subsequent
      to increasing the appellant’s medication, he became “much calmer and he is in
      good control of his emotions.”       IAF, Tab 4 at 54; ID at 10.      Further, in a
      treatment note dated June 14, 2011, around one month after the appellant
      allegedly became disabled, the psychiatrist indicated that the appellant was
      “doing pretty well.”      IAF, Tab 4 at 67.      Moreover, he noted in a mental
      impairment questionnaire that the appellant was “fairly well stabilized” and
      merely needed “continuing treatment for the rest of his life.” Id. at 36.
¶15         The appellant’s psychiatrist testified that he could not work in any capacity.
      HCD. Further, he identified the appellant’s functional limitations in the mental
      impairment questionnaire mentioned above. IAF, Tab 4 at 36-41. He noted that
      the appellant had severe mood swings and poor concentration and memory. Id. at
      38.     However, his opinions appear to be based on the appellant’s subjective
      evidence and thus are not persuasive.        See Johnson, 87 M.S.P.R. 192, ¶ 17
      (finding that the testimony of a psychiatrist was unpersuasive because it was
      largely based on the appellant’s own description of his symptoms as well as other
      doctors’ reports); cf. Christopherson, 119 M.S.P.R. 635, ¶ 13 (noting that an
      employee’s subjective evidence of disability is entitled to consideration and
      weight in a disability retirement case when it is supported by competent medical
      evidence).     Therefore, the evidence from the appellant’s psychiatrist does not
      establish the effect of his bipolar disorder on his ability to work in general, in a
      particular line of work, or in a particular setting, and thus does not establish
      disability. The appellant testified that he was unable to work at any job because
      of the stress of working with others. See HCD. We give little weight to this
      testimony because it was stated only in general terms, without any specific
      information concerning how the appellant’s symptoms affected his ability to
      work.
¶16         The appellant argues that the administrative judge erred by ignoring the
      medical evidence from his personal psychiatrist without finding that he did not
                                                                                              9

      use established diagnostic criteria, per Vanieken-Ryals v. Office of Personnel
      Management, 508 F.3d 1034 (Fed. Cir. 2007). PFR File, Tab 1 at 8-9. Pursuant
      to Vanieken-Ryals, OPM and the Board may give limited weight to medical
      evidence “in the face of factors such as doubts about professional competence,
      contrary medical evidence, failure of the professional to consider relevant factors,
      lack of particularity in relating diagnosis to nature and extent of disability, etc.”
      508 F.3d at 1042.      In the instant case, we find that the administrative judge
      correctly weighed the evidence to find that the appellant did not establish by
      preponderant evidence that he was entitled to disability retirement. 5 See ID at
      3-13.
      The SSA determination alone is not sufficient to warrant an outcome different
      from that set forth in the initial decision.
¶17       SSA found the appellant disabled since May 3, 2011, due to bipolar disorder.
      PFR File, Tab 4 at 13. The appellant argues that this determination establishes
      that he is entitled to a disability retirement annuity. See PFR File, Tab 4 at 5, Tab
      9 at 5-6. We disagree.
¶18       Under the Board’s regulations at 5 C.F.R. § 1201.115(d), the Board may grant
      a petition for review based on new and material evidence that, despite due
      diligence, was not available when the record below closed. In the instant case,
      the SSA determination was issued after the initial decision was rendered; thus it
      is new evidence. 6


      5
        The instant case is distinguishable from Detwiler v. Office of Personnel Management
      because the record does not contain ample evidence to prove that the appellant’s bipolar
      disorder affects his ability to form insights and to reason properly. See 90 M.S.P.R. 77,
      ¶¶ 7-12 (2001) (ordering OPM to approve an appellant’s disability retirement
      application in light of specific evidence that the appellant’s medical condition caused
      him to hoard materials, including materials from work, and behave inappropriately by,
      inter alia, urinating on customers’ lawns, and he was declared incompetent).
      6
       In the initial decision, the administrative judge noted that the appellant testified that
      he was denied disability benefits from SSA but was appealing the initial SSA
      determination. ID at 7 n.6.
                                                                                      10

¶19       However, we find that the SSA decision is not material. To be material, the
      new evidence must be of sufficient weight to warrant an outcome different from
      that of the administrative judge. Russo v. Veterans Administration, 3 M.S.P.R.
      345, 349 (1980). While not dispositive, an SSA determination awarding social
      security benefits is relevant evidence to be considered by the Board and OPM in
      disability retirement cases if the conditions underlying both applications are the
      same.7    Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶ 6
      (2009). In the instant case, SSA identified bipolar disorder as the basis of the
      appellant’s disability. PFR File, Tab 4 at 12-13.
¶20       If SSA cites to medical documentation in its determination, underlying its
      decision to award benefits, which was not submitted to the Board, it is in the
      interest of justice to allow the appellant to submit the evidence to the Board on
      remand for consideration of entitlement to disability retirement benefits.     See
      Gardner v. Office of Personnel Management, 91 M.S.P.R. 391, ¶ 8 (2002). In the
      instant case, the SSA decision referenced evidence which was not submitted to
      the Board, including the testimony of an impartial medical expert, and “the
      examining and reviewing agency opinions.”           PFR File, Tab 4 at 10-13.
      According to the administrative law judge, the medical expert found the personal
      psychiatrist’s opinion to be more persuasive than the examining and reviewing
      agency opinions. Id. at 13. The administrative law judge based his determination
      in part on the medical expert’s opinion. Id. Therefore, we issued an order to the
      parties to submit medical documentation underlying the SSA determination. PFR
      File, Tab 6. The only new documentation submitted by the appellant was his
      function report for his SSA application, which he completed. PFR File, Tab 9 at
      8-25. OPM responded that it had no additional documentation. PFR File, Tab 10
      at 3.

      7
        An SSA determination is not binding on the Board because it is based on different
      laws and regulations. Wilmot v. Office of Personnel Management, 35 M.S.P.R. 238,
      240 (1987).
                                                                                       11

¶21      We find that the SSA determination does not warrant a different outcome from
      the initial decision.   Although the SSA determination is based on the same
      underlying condition, we nonetheless agree with the administrative judge that the
      inadequacy of the medical evidence to prove that the appellant was unable to
      perform the essential functions of his position outweighs the SSA determination.
      See Guthrie v. Office of Personnel Management, 105 M.S.P.R. 530, ¶5 (2007).

                       NOTICE TO THE APPELLAND 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
      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
                                                                               12

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.
