       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               MICHAEL A. ALSTON,
                    Petitioner,

                           v.

     OFFICE OF PERSONNEL MANAGEMENT,
                  Respondent.
             ______________________

                      2013-3138
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE844E120276-I-1.
                ______________________

              Decided: November 8, 2013
               ______________________

   MICHAEL A. ALSTON, San Tan Valley, Arizona, pro se.

    ERIC E. LAUFGRABEN, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.
WHITE, JR., Assistant Director.
                 ______________________

     Before LOURIE, SCHALL, and PROST, Circuit Judges.
2                                           ALSTON   v. OPM



PER CURIAM.
     Michael A. Alston (“Alston”) appeals from the final
order of the Merit Systems Protection Board (the “Board”)
affirming the decision by the Office of Personnel Man-
agement (“OPM”) denying his application for disability
retirement under the Federal Employees’ Retirement
System (“FERS”). See Alston v. Office of Pers. Mgmt., No.
DE-844E-12-0276-I-1 (M.S.P.B. Aug. 10, 2012) (“Initial
Decision”); (M.S.P.B. June 14, 2013) (“Final Order”).
Because the Board’s decision was supported by substan-
tial evidence and we lack jurisdiction to review OPM’s
factual findings relating to disability, we affirm.
                      BACKGROUND
     Alston was employed as a Transportation Security In-
spector (“TSI”) by the Department of Homeland Security
(“DHS”) beginning in May 2004. Initial Decision at 2.
His duties involved inspecting aviation operations for
compliance with governing security standards. Id. On
December 1, 2010, DHS proposed to remove Alston based
on numerous charges, including failure to maintain a
regular work schedule, absence without leave, failure to
follow directions from a supervisor, negligent performance
of duties, fifty instances of alleged tardiness from March
to August 2010, corresponding instances of failure to
accurately record time, and failure to cooperate in an
official investigation on his alleged tardiness. Id. at 5.
After Alston’s response, DHS removed Alston from his
employment on December 28, 2010. Id. Alston subse-
quently entered into a settlement agreement with DHS in
which the original removal action was canceled and a
resignation effective December 28, 2010 was substituted
as the basis of his separation. Id.
    Prior to his separation, Alston applied for disability
retirement under FERS. In February 2010, Alston sought
medical attention for abdominal pain, but test results did
ALSTON   v. OPM                                           3



not reveal any significant abnormalities. Id. at 2. In
June 2010, Alston purportedly experienced headaches,
fatigue, and abdominal pain, but he did not seek profes-
sional treatment. Id. at 3. On August 30, 2010, after a
meeting with his managers in which Alston was repri-
manded for tardiness, Alston experienced migraine head-
aches, abdominal pain, and behavior changes, including
having a more difficult time locating regulations and
yelling at family members. Id. From September to No-
vember 2010, while absent from work, Alston obtained
treatment and diagnosis from various health profession-
als for headaches, abdominal pain, and mood disorder,
among other symptoms. Id. at 3–4. On November 23,
2010, Alston completed an application for disability
retirement under FERS, in which he listed tension cepha-
lalgia (headaches), abdominal pain, neck pain, back pain,
bipolar disorder, mood disorder, and post-traumatic stress
disorder as the claimed disability. Id. at 4.
    OPM denied Alston’s application for disability retire-
ment. Id. at 5–6. OPM found that Alston failed to estab-
lish that his service deficiency was caused by the claimed
medical conditions. J.A. 109. OPM also found that there
was insufficient evidence to establish a disabling medical
condition. J.A. 110.
    Alston appealed that decision to the Board. The Ad-
ministrative Judge (“AJ”) affirmed OPM’s decision finding
that Alston had not shown by a preponderance of evidence
that his service deficiency was caused by the claimed
medical conditions. Initial Decision at 9–10. The AJ also
questioned the veracity of Alston’s testimony on the
effects of his medical conditions, because he had misrep-
resented to healthcare providers the circumstances of his
employment and his separation from DHS. Id. at 11. On
review, the full Board affirmed the AJ’s initial decision
adopting it as the Board’s final decision. Final Order at 2.
4                                            ALSTON   v. OPM



The Board agreed with the AJ that Alston failed to estab-
lish a disabling medical condition under FERS. Id. at 8.
   Alston appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
     The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reasona-
ble mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
    In an appeal from a denial of disability retirement
benefits under FERS, our jurisdiction is further limited by
5 U.S.C. § 8461(d). Anthony v. Office of Pers. Mgmt., 58
F.3d 620, 626 (Fed. Cir. 1995). We may review 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. (quoting Lindahl v.
Office of Pers. Mgmt., 470 U.S. 768, 791 (1985)). However,
OPM’s factual findings as to the question of disability are
reviewable only by the Board. Id.
    Alston argues that the Board failed to properly con-
sider certain evidence supporting his disability claim and
improperly denied his eligibility for disability retirement
after considering only objective medical evidence. Alston
challenges the AJ’s finding on his credibility. Alston also
asserts that his removal from employment was based on
ALSTON   v. OPM                                           5



his extended absence due to illness, which created a
presumption that shifted the burden of production to the
government, and that the Board failed to consider wheth-
er the government had met its burden.
    The government responds that 5 U.S.C. § 8461(d) pre-
cludes judicial review of factual determinations on disabil-
ity and that the Board had considered the evidence cited
by Alston, but concluded that those records did not sup-
port his disability claim. The government contends that
the AJ’s credibility determination is virtually unreviewa-
ble on appeal. The government also responds that the
Board correctly determined that the burden-shifting
presumption did not apply for at least two reasons: (1) the
agency did not remove Alston due to his medical condi-
tions; and (2) Alston entered into a settlement agreement
pursuant to which a resignation was the basis for his
separation.
    We agree with the government that we lack jurisdic-
tion to review OPM’s factual findings on disability, be-
cause Alston did not establish any procedural, legal, or
other fundamental error in the administrative proceeding.
Lindahl, 470 U.S. at 791. Moreover, an applicant for
disability retirement bears the burden of proving, by a
preponderance of evidence, that he or she had a disability
while employed in a position subject to FERS. 5 C.F.R. §§
844.103(a)(2), 1201.56(a)(2).    Here, OPM found that
Alston failed to establish a disabling medical condition
pursuant to FERS. J.A. 110. After considering all rele-
vant evidence on the record, the Board affirmed OPM’s
factual determination. Final Order at 8. We have no
jurisdiction to review those factual findings. Anthony, 58
F.3d at 626.
    We also agree with the government that the Board
correctly determined that the burden-shifting presump-
tion did not apply. While the burden of production is
generally on an employee seeking disability retirement,
6                                            ALSTON   v. OPM



an action by the government separating the employee for
his disability establishes a prima facie case of disability
for purposes of determining retirement benefits and shifts
the burden of production to the government. Bruner v.
Office of Pers. Mgmt., 996 F.2d 290, 293–94 (Fed. Cir.
1993). However, in this case, DHS’s initial removal
proposal did not identify Alston’s medical conditions as
the basis for removing him. Indeed, the proposal listed
numerous service deficiencies, including those occurring
before Alston became absent from work and sought medi-
cal treatments in September 2010, following his meeting
with managers on August 30, 2010. Substantial evidence
therefore supports the Board’s finding that Alston was not
removed due to disability and the burden of production
did not shift to the government.
    We have considered Alston’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is affirmed.
                      AFFIRMED
                          COSTS
    No costs.
