                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3105

                              JOAN POSTELL-PORTER,

                                                              Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                              Respondent.


      Joan Postell-Porter, of Albuquerque, New Mexico, pro se.

       Cameron Cohick, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director.
Of counsel on the brief was Paul N. St. Hillaire, Attorney, Office of the General Counsel,
Office of Personnel Management, of Washington, DC.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3105

                              JOAN POSTELL-PORTER,

                                                               Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                               Respondent.


Petition for review of the Merit Systems Protection Board in DE844E080153-I-1.

                           __________________________

                              DECIDED: June 4, 2009
                           __________________________


Before MICHEL, Chief Judge, LINN, Circuit Judge, and ST. EVE, District Judge. *

PER CURIAM.

      Joan Postell-Porter (“Postell-Porter”) petitions for review of a final decision of the

Merit Systems Protection Board (“Board”) affirming the denial of her application for

Federal Employees’ Retirement System (“FERS”) disability annuity benefits. Postell-

Porter v. Office of Pers. Mgmt., No. DE844E080153-I-1 (M.S.P.B. Jul. 2, 2008) (“Initial

Decision”), review denied, Postell-Porter v. Office of Pers. Mgmt., No. DE844E080153-I-

1 (M.S.P.B. Oct. 15, 2008). Because the Board did not depart from any important




      *
             Honorable Amy J. St. Eve, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
procedural right, misconstrue governing legislation, or commit any similar error requiring

reversal, we affirm.

                                   I. BACKGROUND

       Prior to her termination, Postell-Porter worked as a mailhandler with the United

States Postal Service. The duties of her position included unloading mail from trucks,

removing mail from sacks, carrying mail, and handling empty equipment.

       Postell-Porter claims to have become disabled in November 1998. Citing what

she perceived to be a hostile work environment arising out of difficulties with her

manager, Postell-Porter filed a claim with the Office of Workers’ Compensation

Programs for work-related depressive disorder. Her claim was accepted in either 2003

or 2004. She was assigned a date of injury of November 2, 1998 and continues to

receive work-related compensation for this claim. Her last day in pay status with the

Postal Service was October 20, 2001.       On September 8, 2006, the Postal Service

notified Postell-Porter that she would be removed from her position as a mailhandler

because of her inability to perform the duties of her position.       The removal letter

indicated that, although her disability was viewed as a mitigating factor, Postell-Porter

had not reported to duty since April 7, 1999, and that her removal was necessary so

that a replacement employee could be hired.

       On September 28, 2006, Postell-Porter submitted an application for FERS

disability retirement. In support of her application, she submitted an evaluation by Dr.

Judith Nissenbaum, a clinical psychologist who had treated Postell-Porter since 2001.

The evaluation was dated December 5, 2006 and states that there is no reason that

Postell-Porter cannot work an eight-hour workday and that she requires “no



2009-3105                                   2
restrictions.” However, the evaluation also states that she “can not return to PO [Post

Office].” The Office of Personnel Management denied her application on July 17, 2007.

She requested reconsideration and submitted additional medical records, including a

note from Dr. Nissenbaum dated November 15, 2007 stating that Postell-Porter “was

released to return to work without restriction on December fifteenth, two thousand five

(12/15/05),” and a mental health assessment dated November 16, 2007 by Dr. A.H.

Entezari, which diagnosed Postell-Porter with “major depression, recurrent without

psychotic features.” The Office of Personnel Management denied reconsideration on

December 17, 2007.

      In support of her appeal to the Board, Postell-Porter submitted a letter from Dr.

Nissenbaum dated February 26, 2008 stating that “It is my opinion that an individual

with a history of depression could be vulnerable to a recurrence of depression if placed

in a hostile work environment.”     The Board affirmed the denial, reasoning that:

(1) Postell-Porter’s symptoms were merely situational and specific to what she

perceived to be a hostile work environment, and (2) she could perform the job duties of

her mailhandler position outside of her specific workplace environment. Initial Decision

at 10. Postell-Porter appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                   II. DISCUSSION

      Postell-Porter raises several arguments on appeal. However, our authority to

review the Board’s decision is limited. “This court is without authority to review the

substantive merits of disability determinations, or the factual underpinnings of such

determinations.” Brunner v. Office of Pers. Mgmt., 996 F.2d 290, 291 (Fed. Cir. 1993).

Specifically, “we may not review the Board’s factual determination as to whether



2009-3105                                  3
[Postell-Porter] was disabled within the meaning of the FERS statute.” Trevan v. Office

of Pers. Mgmt., 69 F.3d 520, 524 (Fed. Cir. 1995). Instead, our “review of disability-

based actions is limited to determining 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.” Brunner, 996 F.2d at

292 (internal quotation marks omitted).

       First, Postell-Porter argues that the Board failed to give proper consideration to

the information that she had submitted, including the separation letter from the Postal

Service and the letters from her doctors. We have no authority to review the factual

underpinnings of disability determinations. See id. The Board took into account both

pieces of evidence and made its determination based on the “totality of the evidence.”

Initial Decision at 9. With regard to the Postal Service’s separating letter, we have held

that an agency’s action in separating an employee on grounds of disability does not

automatically establish entitlement to a disability annuity. See Brunner, 996 F.2d at

292. With regard to the doctors’ letters, the Board found that neither Dr. Nissenbaum

nor Dr. Entezari explained how Postell-Porter’s condition affected her ability to perform

the specific duties of her mailhandler position, and therefore concluded that their

opinions were entitled to little weight. Initial Decision at 8.

       Second, Postell-Porter argues that she had not been told that “the burden of

proof should have been on OPM [Office of Personnel Management] because of the

separation letter.” Pet’r’s Br. at 1. Her legal assertion is incorrect. The ultimate burden

of persuasion remained on Postell-Porter to prove that she was “unable, because of

disease or injury, to render useful and efficient service in [her] position.”    5 U.S.C.



2009-3105                                      4
§ 8451(a)(1)(B); Trevan, 69 F.3d at 522. An agency’s action in separating an employee

because of disability serves to shift to the government only the burden of production,

requiring the government to come forward with sufficient evidence to rebut the

presumption of disability. See Bruner, 996 F.2d at 294. The government can meet this

burden of production “by demonstrating a lack of objective medical evidence ‘provid[ing]

a reasoned explanation of how certain aspects of a particular condition render the

employee unable to perform specific work requirements.’”          Trevan, 69 F.3d at 526

(quoting Thomas v. Office of Pers. Mgmt., 54 M.S.P.R. 686, 689-90 (1992)). In this

case, the Board found that the government met its burden because the medical

evidence, including the letters of Drs. Nissenbaum and Entezari, lacked a reasoned

explanation of how Postell-Porter’s depressive disorder affected her ability to perform

the specific work requirements of her mailhandler position. Initial Decision at 8. The

Board then weighed “‘the totality of the evidence produced by both sides’” and held that

Postell-Porter had not carried her ultimate burden of persuasion.         Id. at 9 (quoting

Trevan, 69 F.3d at 527). Thus, the Board followed proper procedures in determining on

the facts before it that Postell-Porter was not entitled to a FERS disability annuity.

       Postell-Porter’s remaining arguments challenge the Board’s factual determination

as to whether she was disabled within the meaning of the FERS statute, which this

court lacks authority to review. See Trevan, 69 F.3d at 524.

                                    III. CONCLUSION

       For the foregoing reasons, we affirm the order of the Board.

                                          COSTS

       No costs.



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