                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit
                                         05-3318

                                 LINDA M. GOULDNER,

                                                             Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.



                              ________________________

                                DECIDED: April 10, 2006
                              ________________________


Before RADER, SCHALL, and GAJARSA, Circuit Judges.

RADER, Circuit Judge.

       The Merit Systems Protection Board (Board) affirmed the Office of Personnel

Management’s (OPM’s) reconsideration decision denying Ms. Gouldner’s application for

disability retirement under the Federal Employees Retirement System (FERS).

Gouldner v. Office of Pers. Mgmt., No. AT-844E-04-0150-I-1 (M.S.P.B. June 15, 2005)

(Board Opinion). Because this record shows no reversible errors, this court affirms.

                                             I.

       Ms. Gouldner was as a Finance Clerk, Level 6, with the United States Postal

Service until she resigned on April 3, 2005, following a criminal investigation for theft of

postal funds and property. On May 28, 2002, during investigation, she was placed on
leave without pay.    During this time, Ms. Goulder applied for disability retirement

claiming an inability to work since June 2002 because of “depression, migraine

headaches, stress, anxiety, sleep disorder and paranoia.”     In 1999, Ms. Gouldner’s

family physician, Dr. Thomas N. Anderson, diagnosed her as suffering from depression

and began treating her for anxiety and depression. In August 2002, Ms. Gouldner

began seeing Dr. Margaret R. Mortensen, Ph.D. in Clinical Psychology. Id. The reports

and testimony of Dr. Mortensen diagnosed Ms. Gouldner with major depression and

post-traumatic stress disorder due to family abuse.

      On March 5, 2003, OPM denied Ms. Gouldner’s request for disability retirement

because she did not meet the disability eligibility requirements. Ms. Gouldner requested

reconsideration by OPM. After reconsideration, on October 20, 2003, OPM affirmed the

original decision. Ms. Gouldner proceeded to file an appeal with the Board. On March

26, 2004, the Board affirmed OPM’s decision and concluded that Ms. Gouldner did not

show that she is disabled from useful and efficient service. Board Decision, slip op. at

4. Ms. Gouldner has now filed a review with this court.

                                           II.

      This court possesses limited authority to review an appeal from the Board. The

Board’s decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law; (2) obtained without procedures

required by law, rule or regulation having been followed; or (3) unsupported by

substantial evidence. 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Protection

Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). “Substantial evidence” is defined as “such

relevant evidence as a reasonable mind might accept as adequate to support a




05-3318                                    2
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). This court cannot

review the factual underpinnings of a decision by OPM to deny an application for

disability retirement under FERS. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791

(1985). This court may only review the determinations in disability benefit cases to

ascertain 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.” Id. (citation and quotes omitted).

       Ms. Gouldner primarily complains about the factual determinations made in the

denial of her application.    This court cannot review those factual underpinnings of

OPM’s denial.

       Ms. Gouldner has claimed that the Board did not take into account, or properly

weigh, evidence in her in favor.        Again, this court cannot review these factual

considerations.

       Ms. Gouldner also alleges that the Board did not consider some evidence that

would have aided her case. Ms. Gouldner does not explain or provide any proof that

any new evidence was rejected by the Board or ever provided at any stage of her

proceedings.      Again, this court cannot review new evidence.        In any event, Ms.

Gouldner’s allegation is insufficient to demonstrate a reversible error.

       Ms. Gouldner claims that the Board incorrectly based its decision on the

assumption that she wrote her petition to the Board. Id. Even assuming that the Board

made an incorrect assumption, the Board’s decision is, nevertheless, supported by

substantial evidence. The Board stated Ms. Gouldner “failed to show that she could not

perform the duties of her position as a result of those disorders or that she is otherwise




05-3318                                      3
generally foreclosed from employment as a result of those disorders.” Board Decision,

slip op. at 5. The Board also noted that Dr. Mortensen did not foreclose Ms. Gouldner’s

return to work or testify that the disability was permanent. Id. Additionally, the Board

pointed out that Ms. Gouldner was employed at the time of the decision. Id. Finally, the

Board’s reference to “the writer” of Ms. Gouldner’s petition was not a basis for its

decision, but was merely a passing comment, as shown by the fact that this comment

begins with “further;” follows many pages of the Board’s factual findings; and also

follows a lengthy paragraph that contains the Board’s determination with its many bases

therefor. Id. As a result, substantial evidence supports the Board’s decision.

       Because Ms. Gouldner has not demonstrated any substantial departure from

important procedural rights, any misconstruction of the governing legislation, or any

error going to the heart of the administrative determination, this court affirms.




05-3318                                      4
