                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 33

                             Docket No. CH-844E-14-0283-I-1

                                    Rachel K. Angel,
                                        Appellant,
                                             v.
                           Office of Personnel Management,
                                          Agency.
                                       April 15, 2015

           Rachel K. Angel, Oregon, Wisconsin, pro se.

           Thomas Styer, Washington, D.C., for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND 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. For the reasons set
     forth below, we DENY the petition for review and AFFIRM the initial decision.

                                     BACKGROUND
¶2         The appellant formerly was employed by the Department of Agriculture
     (USDA) as a GS-08 Biological Science Laboratory Technician. Initial Appeal
     File (IAF), Tab 5 at 53. She was removed from her position on May 21, 2011.
     Id. at 66. About a month earlier, the appellant filed an application for disability
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     retirement benefits under the Federal Employees’ Retirement System (FERS). Id.
     at 36-44. On November 4, 2011, OPM issued a decision denying the appellant’s
     application for disability retirement benefits. Id. at 29-33. The appellant filed a
     request for reconsideration.       Id. at 11-28.   On June 21, 2012, OPM issued a
     reconsideration decision denying the appellant’s application for disability
     retirement benefits. Id. at 5-9.
¶3            The appellant filed an appeal with the Board, and, after holding a hearing,
     the   administrative    judge   issued     an   initial   decision   reversing   OPM’s
     reconsideration decision. IAF, Tab 24, Initial Decision (ID). The administrative
     judge found that the appellant established by a preponderance of the evidence that
     she met the requirements to qualify for disability retirement benefits under FERS.
     ID at 12.
¶4            OPM has filed a petition for review.        Petition for Review (PFR) File,
     Tab 1. The appellant has filed a response opposing OPM’s petition. PFR File,
     Tab 3.

                                            ANALYSIS
¶5            To qualify for disability retirement benefits under FERS, an employee must
     establish that:    (1) she has completed at least 18 months of civilian service
     creditable under FERS; (2) while employed in a position subject to FERS, she
     became disabled because of a medical condition, resulting in a service deficiency
     in performance, conduct, or attendance, or, if there is no such actual service
     deficiency, the disabling medical condition is incompatible with either useful and
     efficient service or retention in the position; (3) the disabling medical condition
     is expected to continue for at least 1 year from the date the disability retirement
     application is filed; (4) accommodation of the disabling medical condition in the
     position held must be unreasonable; and (5) she must not have declined a
     reasonable offer of reassignment to a vacant position. 5 C.F.R. § 844.103(a). It
                                                                                       3

     is undisputed that the appellant completed 18 months of service creditable under
     FERS. 1
¶6         OPM argues on review that the administrative judge erred by finding that
     the appellant established a prima facie case of entitlement to disability retirement
     benefits because she was removed from her position for inability to perform the
     essential functions. PFR File, Tab 1 at 5. OPM also argues that the appellant
     failed to prove her qualification for disability retirement benefits because she
     applied for a position similar to her former position at the USDA, applied for
     other full-time positions, and was employed in various part-time positions after
     she allegedly became disabled from her USDA position. Id. at 7-9. OPM asserts
     that the medical evidence the appellant produced was insufficient to meet her
     burden of proving that she was unable to render useful and efficient service in her
     position. Id. at 6, 8-9.
     The administrative judge did not err in applying the Bruner presumption.
¶7         An employee’s removal for inability to perform the essential functions of
     her position constitutes prima facie evidence that she is entitled to disability
     retirement benefits. Bruner v. Office of Personnel Management, 996 F.2d 290,
     294 (Fed. Cir. 1993). The burden of production then shifts to OPM to produce
     evidence sufficient to support a finding that the appellant is not entitled to
     disability retirement benefits.    Harris v. Office of Personnel Management,
     110 M.S.P.R. 249, ¶ 5 (2008). OPM can meet its burden of production and rebut
     the Bruner presumption by demonstrating a lack of objective medical evidence
     providing a reasoned explanation of how certain aspects of a particular condition
     render the employee unable to perform specific work requirements. Id. If OPM
     meets its burden of production, then the Board will weigh the totality of the


     1
      The parties stipulated that the appellant began working at the USDA on February 9,
     2003, and was separated on May 21, 2011; therefore, she completed the requisite
     18 months of creditable service under FERS. See IAF, Tab 16.
                                                                                         4

     evidence produced by both sides to determine if the appellant is entitled to
     disability retirement benefits.     Trevan v. Office of Personnel Management,
     69 F.3d 520, 527 (Fed. Cir. 1995). In spite of the shifting burdens of production,
     the appellant retains the ultimate burden of persuasion to establish entitlement to
     disability retirement benefits.     Newkirk v. Office of Personnel Management,
     101 M.S.P.R. 667, ¶ 15 (2006).
¶8         OPM argues that the administrative judge erred in applying the Bruner
     presumption because the appellant did not produce copies of a Standard Form
     (SF) 50, a proposal, or a decision to remove her for inability to perform the
     essential functions of her position.      PFR File, Tab 1 at 5.       The appellant,
     however, is not required to produce any specific documentary evidence before the
     Bruner presumption applies.       The appellant was required to produce sufficient
     evidence to support a finding in her favor. See Bruner, 996 F.2d at 293. In an
     appeal from an OPM reconsideration decision involving retirement benefits, the
     appellant has the burden of proving entitlement to benefits by a preponderance of
     the evidence. 2   See 5 C.F.R. § 1201.56(a)(2).     Here, the administrative judge
     found that, even without an SF-50, a proposal notice, or a decision, the appellant
     met the preponderance of the evidence standard by producing enough other
     relevant evidence. ID at 6-7. Having reviewed the record, we agree.
¶9         The USDA provided the appellant with a temporary accommodation of a
     part-time schedule but stated that she could not be accommodated permanently in
     this way. IAF, Tab 5 at 54-55. The USDA also conducted a reassignment search
     and was unable to identify a vacant position to which the appellant could be
     reassigned. Id. at 46; Hearing Tape (HT) (testimony of an Outreach, Diversity
     and Equal Employment Opportunity Specialist). Reassignment is the reasonable


     2
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, wou ld accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                        5

      accommodation of last resort, which is required only after it has been determined
      that there are no effective accommodations that will enable the employee to
      perform the essential functions of her current position or that all other reasonable
      accommodations would impose an undue hardship.           Combs v. Social Security
      Administration, 91 M.S.P.R. 148, ¶ 26 (2002). The appellant testified that she
      was notified that she would be removed from her position on May 20, 2011, for
      her inability to report to duty on a full-time basis.       HT (testimony of the
      appellant). The appellant was removed on May 21, 2011. IAF, Tab 5 at 66. The
      administrative judge appropriately analyzed the record evidence and found no
      evidence that the appellant was separated for reasons other than the reduction in
      her schedule, which was attributable to her migraine headaches. ID at 6. In the
      absence of any contradictory evidence, we agree with the administrative judge’s
      finding that this is sufficient evidence to meet the preponderance of the evidence
      standard and apply the Bruner presumption. ID at 5-6.
¶10         Once the Bruner presumption applies, the burden of production shifts to
      OPM to produce evidence sufficient to support a finding that the appellant is not
      entitled to disability retirement benefits. Harris, 110 M.S.P.R. 249, ¶ 5. OPM
      argues that the administrative judge erred by not allowing OPM to rebut the
      Bruner presumption by demonstrating the lack of objective medical evidence.
      PFR File, Tab 1 at 5-7. The initial decision does not state that OPM’s reliance on
      the absence of objective medical evidence was insufficient to rebut the Bruner
      presumption. In determining whether the appellant met her ultimate burden of
      persuasion, the administrative judge considered the totality of the evidence
      produced by both parties and found that the appellant proved her entitlement to
      disability retirement benefits by a preponderance of the evidence.       ID at 12.
      Successfully rebutting the Bruner presumption shifted the burden of production
      back to the appellant but was not dispositive as to whether she was entitled to
      disability retirement benefits. See Rucker v. Office of Personnel Management,
      117 M.S.P.R. 669, ¶ 5 (2012) (if OPM produces sufficient evidence to rebut the
                                                                                            6

      Bruner presumption, the appellant then must come forward with evidence to rebut
      OPM’s assertion that she is not entitled to benefits).
      The administrative judge did not err in applying 5 C.F.R. § 844.103(a).
¶11          OPM argues that the record contains “a dearth of medical evidence” to
      show that the appellant had a disability when she separated and that her disability
      continues to the present. PFR File, Tab 1 at 8. The appellant had no obligation
      to produce evidence that her disabling condition was permanent or continued
      until the day of the hearing, which took place 3 years after her application for
      disability retirement benefits. 3 The appellant was obligated only to show that her
      disabling condition existed while she was employed in a position covered by
      FERS and was expected to continue for at least 1 year from the date of her
      application for disability retirement.    See 5 C.F.R. § 844.103(a)(2)-(3).       OPM
      asserts that the record does not contain any medical evidence produced since
      2011. PFR File, Tab 1 at 8. The appellant’s application for disability retirement
      was filed in March 2011. IAF, Tab 5 at 37. The last medical report the appellant
      provided in support of her disability retirement application is dated March 30,
      2011, and states that her medical condition would continue for more than 1 year.
      Id. at 45.
¶12          OPM continues to argue on review, as it argued before the administrative
      judge, that the appellant did not produce sufficient medical evidence of her
      disabling medical condition. PFR File, Tab 1 at 8-9. Objective medical evidence
      is only one of several factors to be considered in determining entitlement to
      disability retirement benefits.   Henderson v. Office of Personnel Management,
      117 M.S.P.R. 313, ¶¶ 19-21 (2012).        The Board has always stated that it will
      consider all pertinent evidence in determining an appellant’s entitlement to


      3
        The length of time between the appellant’s separation and the hearing was attributable
      in part to OPM’s sending the reconsideration decision to the wrong address. IAF, Tab 1
      at 7.
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      disability retirement benefits. Id. The lack of objective medical evidence cannot
      be used as the sole basis for denying an applicant disability retirement benefits.
      See Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1039-43
      (Fed. Cir. 2007).   For instance, subjective evidence, i.e., testimony or written
      statements concerning symptoms that are submitted by the appellant, “may be
      entitled to great weight on the matter of disability, especially where such
      evidence is uncontradicted in the record.”       Chavez v. Office of Personnel
      Management, 6 M.S.P.R. 404, 418-22 (1981); see Biscaha v. Office of Personnel
      Management, 51 M.S.P.R. 304, 309 (1991) (an appellant’s subjective evidence of
      pain must be considered seriously, where it is supported by competent medical
      evidence).   Although OPM noted in its reconsideration decision that the
      appellant’s medical records did not contain the results from diagnostic studies,
      IAF Tab 5 at 8, the Board has found that there are no physical changes ordinarily
      associated with migraine headaches other than those changes associated with
      pain, Cole v. Office of Personnel Management, 88 M.S.P.R. 54, ¶ 8 (2001).
¶13         The record contains a medical report dated March 30, 2011, stating that the
      appellant was first diagnosed with migraine headaches in 1999, the frequency of
      her migraine headaches increased in 2008, her migraine headaches were not
      alleviated by a variety of treatments including medication, exercise, and diet, her
      migraine headaches were triggered by stress and hormonal fluctuations, and her
      migraine headaches were expected to last for more than 1 year. IAF, Tab 5 at 45.
      The medical report requests that the appellant be allowed to work 80% of her
      schedule. Id. The appellant’s supervisor at the USDA stated that a permanent
      reduction to an 80% schedule would represent an unacceptable reduction in the
      appellant’s productivity. Id. at 55. He also stated that the appellant’s reduced
      work schedule severely hampered her ability to complete projects in a timely
      manner. Id. at 39. The appellant testified that her migraine headaches prevented
      her from being able to perform the complex technical tasks of her position. HT
      (testimony of the appellant).
                                                                                        8

¶14         Two methods exist for demonstrating eligibility for disability retirement
      benefits, either the employee can show that her medical condition: (1) affected
      her ability to perform specific work requirements, prevented her from being
      regular in attendance, or caused her to act inappropriately; or (2) is inconsistent
      with working in general, in a particular line of work, or in a particular type of
      work setting. Rucker, 117 M.S.P.R. 669, ¶ 10. OPM argues that the appellant
      failed to establish her entitlement to disability retirement benefits because she
      applied for full-time positions and held several part-time positions after she filed
      her disability retirement application.    PFR File, Tab 1 at 7.       However, the
      appellant was not required to show that her disability rendered her incapable of
      working all positions.    The relevant position for determining the appellant’s
      qualification for disability retirement benefits was the position she last held
      before filing her application. See 5 U.S.C. § 8451(a) (an employee is considered
      disabled if she is unable to render useful and efficient service in her position and
      she has not declined a reasonable offer of reassignment); see also Eshelman v.
      Office of Personnel Management, 72 M.S.P.R. 173, 176 (1996). The appellant
      met her burden by showing that her migraine headaches prevented her from
      performing the requirements of the position she held at the time of her application
      for disability retirement benefits. The fact that the appellant has been able to
      work part-time positions with duties and responsibilities that are different from
      the position she held at the USDA (e.g., substitute teacher) is immaterial to
      determining whether her condition affected her ability to perform the specific
      work requirements of the position she held at the USDA. The appellant provided
      unrebutted testimony that the Biological Science Laboratory Technician position
      she applied for at the USDA after she filed her application for disability
      retirement was less technical in nature than her former position and that she
      believed the position for which she applied would be less stressful and less likely
      to trigger her migraine headaches. HT (testimony of the appellant).
                                                                                         9

¶15         The initial decision reflects that the administrative judge considered the
      totality of the evidence produced by both parties, applied the correct legal
      standards, and came to the well-reasoned conclusion that the appellant had met
      her burden of proving her entitlement to a disability annuity at the time of her
      application.     ID at 4-12.   We find no basis for disturbing those findings on
      review.

                                            ORDER
¶16         We ORDER OPM to grant the appellant’s application for disability
      retirement. OPM must complete this action no later than 20 days after the date of
      this decision.
¶17         We also ORDER OPM to tell the appellant promptly in writing when it
      believes it has fully carried out the Board’s Order and to describe the actions it
      took to carry out the Board’s Order. We ORDER the appellant to provide all
      necessary information OPM requests to help it carry out the Board’s Order. The
      appellant, if not notified, should ask OPM about its progress.         See 5 C.F.R.
      § 1201.181(b).
¶18         No later than 30 days after OPM tells the appellant it has fully carried out
      the Board’s Order, the appellant may file a petition for enforcement with the
      office that issued the initial decision on this appeal if the appellant believes that
      OPM did not fully carry out the Board’s Order.         The petition should contain
      specific reasons why the appellant believes OPM has not fully carried out the
      Board’s Order, and should include the dates and results of any communications
      with OPM. See 5 C.F.R. § 1201.182(a).
¶19         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).
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                       NOTICE TO THE APPELLANT
                   REGARDING YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4).       The regulations may be found at 5 C.F.R.
§§ 1201.201, 1202.202, and 1201.203. If you believe you meet these criteria, you
must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION. You must file your attorney fees motion with the
office that issued the initial decision on your appeal.

                  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
                                                                                11

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
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.
