                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANDRE MOORE,                                    DOCKET NUMBER
                         Appellant,                  AT-844E-14-0886-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: June 18, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Stephen Domenic Scavuzzo, Esquire, McLean, Virginia, for the appellant.

           Delores A. Saunders, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, 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 OPM’s reconsideration decision denying
     the appellant’s application for disability retirement benefits. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 U.S. Postal Service and
     was removed from that position due to a non-work related disability.         Initial
     Appeal File (IAF), Tab 13, Initial Decision (ID) at 2. He filed this appeal of
     OPM’s reconsideration decision denying his application for disability retirement
     benefits under the Federal Employees’ Retirement System (FERS). IAF, Tab 1.
     OPM submitted its file on the matter, IAF, Tab 4, and explained in its prehearing
     submission that although the appellant had the requisite 18 months of creditable
     service, he had not met the other requirements to demonstrate his eligibility for
     disability retirement, IAF, Tab 6. The appellant withdrew his hearing request and
     the administrative judge issued an order setting the close of the record. IAF,
     Tabs 7-8. In his prehearing conference summary, the administrative judge set
     forth the burdens and elements the appellant must establish to demonstrate by
     preponderant evidence that he is entitled to a disability retirement annuity. IAF,
     Tab 9.
¶3        To be eligible for a disability retirement annuity under FERS, an employee
     must have completed at least 18 months of creditable civilian service, must be
                                                                                       3

     unable, because of disease or injury, to render useful and efficient service in his
     position, and must not have declined a reasonable offer of reassignment to a
     vacant position in the agency at the same or greater grade or pay level in his
     commuting area in which he is able to render useful and efficient service.
     5 U.S.C. § 8451(a); see 5 C.F.R. § 844.103(a). OPM’s implementing regulations
     further require that the disabling medical condition be expected to continue for at
     least 1 year from the date the application is filed and that accommodation of the
     condition in the appellant’s position be unreasonable. 5 C.F.R. § 844.103(a)(3),
     (4).
¶4          After considering the parties’ respective close of record submissions, the
     administrative judge reversed OPM’s reconsideration decision. See ID. In his
     initial decision, the administrative judge found that the appellant established that
     he suffered from degenerative disc disease involving chronic radiating pain at the
     time of his separation in January 2013. ID at 10. Noting the consistency between
     the appellant’s medical records both before and after his separation, the
     administrative judge determined that the appellant’s back problems continued
     and, because he found no evidence to indicate that the condition was in remission
     or was asymptomatic in the months following his separation, he further found that
     the appellant’s condition was expected to continue for over 1 year from the date
     the appellant applied for disability retirement.     ID at 9-10.     Following his
     comprehensive review of the medical evidence, the administrative judge
     determined that, when viewed in light of the agency’s documentation reflecting
     the appellant’s extended time in a leave without pay status, the appellant
     established by preponderant evidence that his “disability prevented him from
     being regular in attendance and thereby rendered him unable to render useful and
     efficient service in his position.”   ID at 11.   Lastly, the administrative judge
     found no evidence to indicate that the appellant turned down any reassignment
     offer from his employing agency and, in light of his inability to walk his
     prescribed route, carry a heavy bag of mail, or drive a vehicle without
                                                                                      4

     experiencing significant pain, the administrative judge found that the appellant
     met his burden of proving that accommodation of his condition in his position
     was not reasonable. ID at 12.
¶5        In its timely-filed petition for review, OPM first argues that the
     administrative judge erred in affording the Bruner presumption to the appellant in
     this case. Petition for Review (PFR) File, Tab 1 at 5; see Bruner v. Office of
     Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993). Under the Bruner
     presumption, an employee’s removal for physical inability to perform the
     essential functions of his position constitutes prima facie evidence that he is
     entitled to disability retirement; the burden of production then shifts to OPM to
     produce evidence sufficient to support a finding that the applicant is not entitled
     to disability retirement benefits; and, if OPM produces such evidence, the
     applicant then must come forward with evidence to rebut OPM’s assertion that he
     is not entitled to benefits. Bruner, 996 F.2d at 294. The agency contends that the
     administrative judge erred in granting the presumption in the absence of either
     proposal or removal letters that show the appellant’s removal for physical
     inability to perform the essential function of his position. PFR File, Tab 1 at 5.
     The agency also argues that, even if the Bruner presumption applies in this case,
     the administrative judge erred in failing to discuss how OPM rebutted the
     presumption.   Id. The appellant responds in opposition to OPM’s petition for
     review. PFR File, Tab 3.
¶6        Although OPM is correct that the administrative judge did not discuss
     exactly how it rebutted the Bruner presumption, the administrative judge’s
     determination that the appellant ultimately met his evidentiary burden to
     demonstrate his entitlement to a disability retirement annuity obviated the need
     for any further discussion of Bruner. See ID at 5-12. In any event, this does not
     mean that the administrative judge did not consider the agency’s rebuttal in his
     analysis. See Marques v. Department of Health & Human Services, 22 M.S.P.R.
     129, 132 (1984) (the administrative judge’s failure to mention all of the evidence
                                                                                          5

     of record does not mean that he did not consider it in reaching his decision),
     aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).             Indeed, even though the
     administrative judge found the presumption applicable under the circumstances of
     this appeal, he also found that the appellant established his entitlement to a
     disability retirement annuity on the strength of his own evidence, as necessarily
     would be the case when OPM rebuts the Bruner presumption and the appellant
     goes on to rebut OPM’s assertion that he is not entitled to benefits. We agree
     with the administrative judge’s determinations and find that he did not err in
     proceeding to the ultimate question rather than engaging in a burden-shifting
     analysis under Bruner.     Moreover, because the appellant carried his statutory
     burden of proof, see 5 U.S.C. § 8451(a), any possible error in this regard did not
     affect the outcome of the case, e.g., Panter v. Department of the Air Force,
     22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
     party’s substantive rights provides no basis for reversal of an initial decision).
¶7         Next, OPM asserts that the administrative judge erred in his application of
     5 C.F.R. § 844.103(a)(2), (4)-(5). PFR File, Tab 1 at 6-7. OPM argues that the
     appellant’s medical evidence does not reflect that his condition is severe enough
     to warrant disability retirement and that the evidence fails to explain how he was
     unable to render useful and efficient service.       Id.   OPM also contends that,
     because the appellant failed to establish a disabling medical condition, neither
     accommodation nor reassignment were necessary.             Id.   In doing so, OPM
     essentially challenges the administrative judge’s interpretation of, and the weight
     he afforded, the appellant’s evidence in his analysis. We have considered OPM’s
     arguments on review concerning the administrative judge’s weighing of the
     evidence, but we discern no reason to reweigh the evidence or substitute our
     assessment of the record evidence for that of the administrative judge. See, e.g.,
     Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
     to disturb the administrative judge’s findings when she considered the evidence
     as a whole, drew appropriate inferences, and made reasoned conclusions);
                                                                                  6

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987) (same).

                 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
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for       information     regarding    pro    bono
                                                                                7

representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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.
