                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MADELAINE E. SATTLEFIELD,                       DOCKET NUMBER
                   Appellant,                        CH-844E-13-4542-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October 7, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Madelaine E. Sattlefield, East Saint Louis, Illinois, pro se.

           Matthew D. MacIsaac, 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) final decision denying her
     application for disability retirement. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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   Federal    Employees’      Retirement    System
     (FERS)-covered Mail Handler who worked for the Postal Service from
     September 9, 2000, until the agency removed her on June 10, 2011, for
     unacceptable attendance. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 6, Tab 6
     at 22, 54-56. On or about April 12, 2012, the appellant filed an application for
     disability retirement based on the following conditions: (1) a rotator cuff injury;
     (2) plantar fasciitis; (3) anxiety attacks; and (4) a punctured lung. IAF, Tab 6
     at 20. OPM issued a final decision denying the application, and the appellant
     filed a Board appeal. IAF, Tab 1, Tab 6 at 6-9. The appellant initially requested
     a hearing, but later withdrew her request. IAF, Tab 1 at 1, Tab 10 at 1.
¶3         After receiving the parties’ evidence and argument, the administrative judge
     issued an initial decision affirming OPM’s final decision. IAF, Tab 13, Initial
     Decision (ID) at 2, 7. She found that, although appellant has several medical
     conditions, the appellant failed to prove that any of these conditions are disabling.
     ID at 6.
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¶4        The appellant has filed a petition for review, arguing that the administrative
     judge weighed the evidence incorrectly, that she received a scheduled award for
     her rotator cuff injury, and that she is currently complying with her prescribed
     medication and physical therapy regimens. Petition for Review (PFR) File, Tab 1
     at 4-5.   The appellant asserts that her attorney advised her to withdraw her
     hearing request. Id. at 5. She has filed various documents with her petition for
     review pertaining to her workers’ compensation claim and current medical
     regimen. PFR File, Tab 3. OPM has not filed a response.
¶5        As an initial matter, we have not considered the evidence that the appellant
     filed for the first time on review related to her workers’ compensation claim.
     PFR File, Tab 3 at 2-11. All of this evidence predates the initial decision and, in
     fact, predates the appellant’s disability retirement application.    She has not
     explained why she was unable to submit this evidence for the record below
     despite her due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
     214 (1980) (under 5 C.F.R. § 1201.115, the Board will not consider evidence
     submitted for the first time with the petition for review absent a showing that it
     was unavailable before the record was closed despite the party’s due diligence).
     The evidence of the appellant’s current medical regimen, however, postdates the
     initial decision. PFR File, Tab 3 at 12-13. We have considered that evidence to
     the extent that it bears on the issue of whether the appellant’s claimed medical
     conditions were disabling during the relevant time periods, but we find that it is
     immaterial to the outcome of the appeal. See id.
¶6        An employee bears the burden of proving by preponderant evidence her
     entitlement to disability retirement. Snow v. Office of Personnel Management,
     74 M.S.P.R. 269, 273 (1997); 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 18 months of creditable
     civilian service; (2) the individual must, while employed in a position subject to
     FERS, have become 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 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
     application for disability retirement is filed; (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.   5 U.S.C. § 8451; Henderson v. Office of Personnel Management,
     109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 844.103(a).
¶7         There is no dispute that the appellant has satisfied the service requirements
     for disability retirement under FERS and that she has not declined any reasonable
     offer of reassignment.      Therefore, the only issues in this appeal relate to the
     appellant’s medical conditions and their effects on her ability to perform in her
     former position, i.e., eligibility criteria (2), (3), and (4).
¶8         The record amply demonstrates that the appellant had an attendance
     deficiency. IAF, Tab 6 at 21-23, 55. Indeed, this was the reason for her removal.
     Id. at 22. However, we agree with the administrative judge that the evidence is
     insufficient to show that the appellant’s rotator cuff injury caused her attendance
     deficiency. ID at 5. The appellant incurred this injury on August 27, 2009. IAF,
     Tab 4 at 7. She states that she underwent surgery for it in February 2010, and she
     was apparently on limited duty for a period of time as a consequence of this
     injury. Id. at 7-8; IAF, Tab 6 at 44, Tab 9 at 3, Tab 11 at 3. The appellant states
     that she continues to have severe problems with her shoulder, and an undated
     statement from a coworker similarly states that the appellant is in constant pain
     from this injury. IAF, Tab 4 at 20, Tab 11 at 3-5. However, the appellant has not
     explained why the agency returned her to full duty on May 24, 2010, if she had
     not recovered sufficiently from her compensable injury to resume the full duties
     of her Mail Handler position.        IAF, Tab 6 at 44.       The appellant’s first-hand
     account of pain and inability to work due to her shoulder injury is certainly
                                                                                              5

     probative of whether her condition is disabling.            IAF, Tab 11 at 3-5; see
     Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1040-44
     (Fed. Cir. 2007). However, there is no actual medical evidence in the record of
     this condition or the surgery apart from an October 31, 2013 note from an office
     visit, stating that the appellant is still experiencing “pain/stiffness” from the
     injury and is taking an unspecified pain medication for it.            IAF, Tab 9 at 3.
     Under the circumstances, we agree with the administrative judge that this
     evidence is insufficient to show that the appellant’s rotator cuff injury remained
     disabling after the agency returned her to full duty in 2010.
¶9         There is slightly more medical evidence regarding the appellant’s plantar
     fasciitis. The appellant submitted two notes from a podiatrist, dated April 28,
     2011, and May 5, 2011, diagnosing her with plantar fasciitis. 2 IAF, Tab 6 at 30,
     32.   Such a condition would appear to be particularly problematic for a Mail
     Handler like the appellant, whose job involves prolonged standing and walking
     while handling heavy items. Id. at 43; IAF, Tab 11 at 3. Nevertheless, even if
     the appellant’s plantar fasciitis contributed to her attendance deficiency, we find
     insufficient evidence to conclude that this condition was expected to continue for
     at least 1 year after her April 12, 2012 disability retirement application. The
     podiatrist fitted the appellant with orthotics, prescribed stretching exercises, and
     noted progress in the appellant’s plantar fasciitis, with the goal of rendering the
     condition asymptomatic.         IAF, Tab 6 at 31-32.             There is no medical
     documentation of this condition after the appellant’s removal, and, notably, there
     is no mention of plantar fasciitis in the October 31, 2013 comprehensive medical


     2
       The podiatrist also diagnosed the appellant with unspecified fasciitis, a heal spur,
     stress fracture syndrome, and extensor tendonitis. IAF, Tab 6 at 30, 32. However, the
     appellant did not claim these conditions as disabling in her original disability retirement
     application or in her reconsideration request. The Board will not consider evidence
     relating to medical conditions that were never the subject of an application to OPM for
     disability retirement. Dunn v. Office of Personnel Management, 60 M.S.P.R. 426, 433
     (1994).
                                                                                                  6

      assessment that the appellant obtained in support of her disability retirement
      claim. IAF, Tab 9 at 3.
¶10         As for the appellant’s anxiety attacks, the record contains four notes from a
      psychiatrist, dated June 30, 2008, July 14, 2008, April 22, 2009, and July 14,
      2010, all of which confirm that the appellant suffered from anxiety problems
      during that time. IAF, Tab 6 at 33-37. The psychiatrist diagnosed the appellant
      with panic disorder and a “likely” general anxiety disorder. 3 Id. He prescribed
      her Zoloft and Klonopin to manage her symptoms. Id. at 33. The psychiatrist’s
      description of the appellant’s anxiety attacks is consistent with the appellant’s
      first-hand account and describes them as occurring about once a day—usually at
      night—and consisting of chest pain, shortness of breath, and intense anxiety and
      sweats, lasting about 10 to 15 minutes and interfering with her sleep. 4                IAF,
      Tab 6 at 33-34, 36, Tab 11 at 5. There is no indication, however, in either the
      psychiatrist’s reports or in the appellant’s subjective first-hand account of her
      condition that it interfered in any way with her working. Nor do we find any
      apparent connection between the appellant’s ability to work and these discreet
      episodes that occur mostly at night.            See Anderson v. Office of Personnel
      Management, 96 M.S.P.R. 299, ¶ 20 (2004) (anxiety is not a condition that is
      obviously incapacitating; the Board will require further information to connect an
      appellant’s anxiety with her inability to perform her job duties), aff’d, 120 F.
      App’x 320 (Fed. Cir. 2005). Furthermore, the psychiatrist’s notes indicate some
      improvement in the appellant’s symptoms even with her partial compliance with
      the psychiatrist’s treatment plan.       IAF, Tab 6 at 34-35.        There is no medical

      3
        The psychiatrist also diagnosed the appellant with major depression, and the appellant
      gives a first-hand account of this condition. IAF, Tab 6 at 34-35, 37, Tab 11 at 4, 6.
      However, the appellant did not raise this as a disabling condition before OPM, and
      therefore we will not consider it. See Dunn, 60 M.S.P.R. at 433.
      4
        The psychiatrist described these episodes as “panic attacks” rather than “anxiety
      attacks,” but it is apparent that this is the condition to which the appellant is referring in
      her disability retirement application. IAF, Tab 6 at 20, 36.
                                                                                                7

      evidence of this condition after July 14, 2010, and we find insufficient evidence
      to conclude that it could be expected to persist for 1 year or more after the
      June 12, 2012 disability retirement application date, especially if the appellant
      fully complied with her psychiatrist’s instructions.          Cf. Smedley v. Office of
      Personnel Management, 108 M.S.P.R. 31, ¶ 23 (2008) (voluntary refusal to
      accept facially-reasonable treatment will bar entitlement to disability retirement
      benefits). There is no mention of this condition in the October 31, 2013 medical
      evaluation. IAF, Tab 9 at 3.
¶11         We also find that the appellant’s punctured lung was not the reason for her
      attendance deficiency because she incurred that injury on June 10, 2011—3 days
      after the agency issued its removal decision. 5            IAF, Tab 6 at 22, 24-29.
      Furthermore, there is no evidence that the injury continued to be disabling until
      April 12, 2013—1 year past the date of the appellant’s disability retirement
      application.   In fact, this seems unlikely based on the June 20, 2011 hospital
      discharge summary, which is the most recent medical evidence of this condition
      and offers a favorable prognosis. Id. at 25.
¶12         In sum, we find that the sparse medical evidence and the appellant’s
      first-hand account of her medical conditions are insufficient to support a finding
      that any of these four conditions, alone or together, disabled the appellant from
      performing in her Mail Handler position both during her employment and for
      1 year after her disability retirement application.          The evidence is variously
      insufficient to show a connection between these conditions and the appellant’s

      5
       There is no first-hand documentation of the appellant’s removal in the record, e.g., the
      proposal letter, the decision letter, or the Postal Service Form 50. It is therefore unclear
      whether the appellant’s June 10, 2011 injury occurred before her June 10, 2011 removal
      became effective.       See generally Honea v. Department of Homeland Security,
      118 M.S.P.R. 282, ¶¶ 9-10 & n.3 (2012) (separations generally occur at the end of the
      day (midnight) unless the agency indicates that the separation will be effective at an
      earlier time), aff’d, 524 F. App’x 623 (Fed. Cir. 2013). For purposes of this decision,
      we assume that this injury occurred prior to the appellant’s separation. See generally
      5 C.F.R. § 844.103(a)(2) (to be entitled to disability retirement, an individual’s
      disability must have occurred while in service).
                                                                                         8

      ability to work or that the conditions could be expected to persist for 1 year or
      more after she applied for disability retirement.             We also note that,
      notwithstanding her supervisor’s statement, the appellant’s attendance deficiency
      appears to have begun well before the claimed onset of her disability in 2009.
      IAF, Tab 6 at 20-22. The appellant’s individual retirement record shows that she
      incurred substantial amounts of leave without pay beginning in 2003. Id. at 55.
      This makes it all the more difficult to attribute the appellant’s attendance
      deficiency from 2009 onward solely or even primarily to her claimed disabling
      conditions. For these reasons, contrary to the appellant’s arguments on review,
      we agree with the administrative judge’s assessment of the evidence. See PFR
      File, Tab 1 at 4; see also ID at 3-7.
¶13         Regarding the appellant’s withdrawal of her hearing request, although the
      appellant may now regret that decision, she is ultimately responsible for the
      prosecution of her own appeal and cannot escape the consequences of her
      decision to rely on the advice of her attorney. 6 See Fairchilde v. Department of
      the Interior, 36 M.S.P.R. 586, 588 (1988). In any event, the appellant has not
      explained how a hearing in this appeal might have affected the outcome.
      Likewise, we find it immaterial that the appellant’s shoulder injury was ruled
      compensable and that she is currently complying with her doctor’s instructions.
      PFR File, Tab 1 at 5.

                       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:




      6
       The appellant has acted pro se throughout the course of her Board appeal. The nature
      and source of this legal advice is not clear.
                                                                                  9

                          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 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
                                                                           10

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.
