                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FREGENET B. CAMBRELEN,                          DOCKET NUMBER
                   Appellant,                        DE-844E-14-0016-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: January 16, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Fregenet B. Cambrelen, Aurora, Colorado, pro se.

           Linnette Scott, 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’s) final decision denying
     her disability retirement application under the Federal Employees’ Retirement
     System (FERS). Generally, we grant petitions such as this one only when: the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     initial decision contains erroneous findings of material fact; 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 GS-8 Contact Representative for the Department of the
     Treasury, Internal Revenue Service. Initial Appeal File (IAF), Tab 1 at 1, Tab 6
     at 97.    She was employed by that agency from November 5, 2001, until her
     resignation on February 17, 2012. IAF, Tab 6 at 90-93. She filed an application
     for disability retirement, listing posttraumatic stress disorder (PTSD) as her
     disabling condition. Id. at 43. On August 29, 2013, OPM issued a final decision
     denying the appellant’s application on the basis that the appellant failed to show
     that her condition was disabling. Id. at 7-9.
¶3         The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at
     2.    The appellant subsequently withdrew her hearing request, and the
     administrative judge issued an initial decision affirming OPM’s final decision on
     the written record.   IAF, Tab 15, Tab 24, Initial Decision (ID) at 2, 9.         The
     administrative judge found that the appellant failed to prove that her PTSD was
     incompatible with useful and efficient service or retention in the position because
     she failed to show that she complied with recommended treatment that might have
     helped the condition to be controlled. ID at 8-9.
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¶4        The appellant has filed a petition for review, arguing that the administrative
     judge was careless and abused her discretion in various ways throughout the
     course of the appeal. Petition for Review (PFR) File, Tab 1 at 4-7. The appellant
     argues that her resignation was involuntary, id. at 5-7, and she disputes the
     administrative judge’s finding that she was noncompliant with treatment so as to
     preclude her disability retirement, id. at 6-7. OPM has filed a response to the
     appellant’s petition for review, PFR File, Tab 3, and the appellant has filed a
     reply to OPM’s response, PFR File, Tab 4.

     The administrative judge did not commit harmful error by permitting the
     appellant to withdraw her hearing request.
¶5        On review, the appellant alleges that OPM’s representative failed to appear
     for the scheduled telephonic hearing. PFR File, Tab 1 at 4. She also alleges that
     the administrative judge intended to reschedule the hearing even though the
     appellant and her five witnesses had already taken time off of work or otherwise
     rearranged their schedules to be in attendance as expected. Id. at 4-5. Rather
     than ask her witnesses to inconvenience themselves further, the appellant took the
     administrative judge’s suggestion to withdraw her hearing request and have the
     witnesses submit written statements instead. Id. at 5; IAF, Tab 15. Despite this,
     only three of the five witnesses were able to submit their statements before the
     deadline. PFR File, Tab 1 at 5; IAF, Tabs 17, 19-20.
¶6        While    the   appellant’s   frustration   with   this   procedural   matter   is
     understandable, we find that it provides no basis to disturb the initial decision.
     An administrative judge has broad authority to govern the proceedings before her.
     Boutin v. U.S. Postal Service, 115 M.S.P.R. 241, ¶ 8 (2010). Whether good cause
     exists to postpone a hearing is determined by the unique circumstances of each
     case and rests with the administrative judge’s sound discretion.       Keay v. U.S.
     Postal Service, 57 M.S.P.R. 331, 335 (1993). We find that the administrative
     judge did not abuse her discretion in postponing the hearing when the agency’s
     representative was, at the last minute, unable to attend due to a “family
                                                                                        4

     emergency.” IAF, Tab 15 at 1. In addition, the appellant has not explained what
     further evidence she would have presented or how the outcome of the appeal
     might have changed if she had submitted statements from all five witnesses or if
     the matter had gone to a hearing.       See Karapinka v. Department of Energy,
     6 M.S.P.R. 124, 127 (1981) (an administrative judge’s procedural error is of no
     legal consequence unless it is shown to have adversely affected a party’s
     substantive rights). In this regard, we note that the appellant did not request an
     extension of time to submit her remaining witness statements below, and she has
     not provided the statements for the Board on review or described what further
     information those statements would have contained.

     The administrative judge’s conduct in the proceedings below does not evidence
     bias or reflect a mistake of material fact.
¶7         The appellant raises various other complaints about the conduct of the
     proceedings below, including that the administrative judge repeatedly referred to
     her by the wrong name, referred to her as “he” rather than “she,” and referred to
     the appellant’s sister as her brother. PFR File, Tab 1 at 4-6. However, we find
     that these misstatements were not misstatements of material fact; they did not
     affect the outcome of the appeal. See 5 C.F.R. § 1201.115(a)(1) (for the Board to
     grant a petition for review, under 5 C.F.R. § 1201.115(a), the administrative
     judge’s mistakes of fact must have been material to the outcome of the appeal).
¶8         The appellant also asserts that the administrative judge advised her at one
     point that five other cases were receiving priority over hers and that it took 40
     days after that for the administrative judge to issue her initial decision. PFR File,
     Tab 1 at 2. The appellant, however, has not explained how the administrative
     judge’s delay in issuing the decision prejudiced her substantive rights.         See
     Karapinka, 6 M.S.P.R. at 127.
¶9         The appellant also asserts that the administrative judge spoke to her in a
     demeaning manner, including asking her the question, “I don’t think you are
     faking it, are you?” PFR File, Tab 1 at 5. We do not find this question indicative
                                                                                        5

      of bias against the appellant.   To the contrary, it appears to indicate that the
      administrative judge believed that the appellant was suffering from PTSD as she
      claimed. In making a claim of bias or prejudice against an administrative judge, a
      party must overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980). An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if the administrative judge’s
      comments or actions evidence “a deep-seated favoritism or antagonism that would
      make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
      1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
      555 (1994)). We find that neither this question nor any of the other statements
      and actions described above were sufficient to establish bias on the part of the
      administrative judge.

      The appellant has not established that she was “disabled” within the meaning of
      5 U.S.C. § 8451(a)(1).
¶10        Under 5 C.F.R. § 1201.56(a)(2), an employee bears the burden of
      persuasion by a preponderance of the evidence in an appeal from OPM’s decision
      on a voluntary disability retirement application. Chavez v. Office of Personnel
      Management, 6 M.S.P.R. 404, 417 (1981).           To be eligible for a disability
      retirement annuity under FERS, an employee must show the following: (1) she
      completed at least 18 months of creditable civilian service; (2) while employed in
      a position subject to FERS, she became disabled because of a medical condition,
      resulting in a deficiency in performance, conduct, or attendance, or, if there is no
      such deficiency, the disabling medical condition is incompatible with either
      useful and efficient service or retention in the position; (3) the disabling
      condition is expected to continue for at least 1 year from the date that the
      application for disability retirement benefits was filed; (4) accommodation of the
      disabling medical condition in the position held must be unreasonable; and
      (5) she did not decline a reasonable offer of reassignment to a vacant position.
                                                                                        6

      Thorne v. Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007); see
      5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a).
¶11        For purposes of FERS, an employee is considered “disabled” only if she is
      found to be unable, because of disease or injury, to render useful and efficient
      service in her position.   5 U.S.C. § 8451(a)(1)(B).    As part of her burden to
      establish that she is disabled because of a medical condition, the employee must
      establish the extent to which her disability can or cannot be controlled.
      Wilkey-Marzin v. Office of Personnel Management, 82 M.S.P.R. 200, ¶ 15 (1999).
      If an employee is unable to render useful and efficient service because she fails or
      refuses to follow or accept normal treatment, her disability flows not from the
      disease or injury itself (as the statute requires) but from her voluntary failure or
      refusal to take the available corrective or ameliorative action. Baker v. Office of
      Personnel Management¸ 782 F.2d 993, 994 (Fed. Cir. 1986); Shanoff v. Office of
      Personnel Management, 103 M.S.P.R. 549, ¶ 9 (2006).
¶12        In this case, the administrative judge found that the appellant failed to
      produce any evidence that she complied with recommended treatment protocols
      that might permit her medical conditions to be controlled, i.e., further evaluation
      and routine follow-up care by a licensed mental health clinician and a full
      psychiatric evaluation for the appropriateness of medication to treat her mental
      health condition. ID at 8-9. We agree. The appellant submitted several pieces of
      medical documentation, IAF, Tab 6 at 19-25, 50-53, Tab 21 at 3-6, but only three
      of them refer to the appellant’s PTSD: a January 7, 2012 Family and Medical
      Leave Act certification, IAF, Tab 6 at 50-53; a February 9, 2012 letter from a
      licensed professional counselor, id. at 23; and a February 15, 2012 letter from her
      primary care physician, id. at 21-22. The remaining medical documentation is not
      relevant to the issues in this appeal.        See Dunn v. Office of Personnel
      Management, 60 M.S.P.R. 426, 433 (1994) (the Board will not consider medical
      evidence pertaining to conditions that were not the subject of the disability
      retirement application).
                                                                                      7

¶13        The Family and Medical Leave Act certification was prepared by the
      appellant’s primary care physician, who indicated that the onset of the PTSD was
      approximately April 2011, that he had seen her several times for treatment,
      prescribed her medication, and referred her to a psychologist for weekly
      follow-up treatment.    IAF, Tab 6 at 50-52.       The letter from the licensed
      professional counselor confirms the PTSD diagnosis but recommends that the
      appellant seek treatment closer to her home because his office is “many miles
      across town from [the appellant’s] living and working area.”      Id. at 23.   He
      referred the appellant to therapists and psychiatrists closer to her home and
      recommended a “full psychiatric evaluation for the appropriateness of medication
      trials.” Id. The subsequent letter from the appellant’s primary care physician
      refers her to a psychiatrist, id. at 21, who apparently saw the appellant at least
      once and conducted a mental status examination, id. at 24-25.
¶14        We agree with the administrative judge that, despite these recommendations
      and referrals, there is no evidence to show that the appellant pursued the
      recommended course of treatment in any respect. The appellant’s primary care
      physician noted that she declined antidepressant medication, and the appellant
      herself admitted as much. Id. at 12, 21. Although the appellant explains that she
      declined Wellbutrin because it made her ill and she has concerns about its safety,
      there is no evidence that the appellant sought advice from her psychiatrist about
      these matters or about the possibility of trying an alternative medication or
      treatment. Id. at 12; PFR File, Tab 1 at 6. Nor is there any evidence that the
      appellant engaged a psychologist or other therapist for recurrent psychotherapy
      sessions as recommended. The appellant asserted below that she had been treated
      for her PTSD “for over a year” by a licensed professional counselor, but the only
      evidence she provided of having seen this counselor at all was a May 7, 2008 note
      indicating the appellant’s incapacitation from work for depression and advising
      that she would “continue treatment until symptoms have abated.” IAF, Tab 6 at
      12, 19. This does not constitute evidence that the appellant was receiving routine
                                                                                        8

      psychotherapy for her claimed disabling condition at the time of her resignation
      nearly 4 years later. The appellant asserts on review that she followed all of the
      recommended treatments while she had the ability to do so and that she continued
      to receive treatment within her means once she lost her insurance. PFR File, Tab
      1 at 6-7.   This non-specific assertion lacks any documentary support and is
      insufficient to establish that the appellant pursued the recommended treatment for
      her PTSD symptoms. For these reasons, we agree with the administrative judge
      that the appellant has not established her entitlement to a disability retirement
      annuity. ID at 9.

      The administrative judge made no material error in her application of the law.
¶15        The appellant argues that some of the cases that the administrative judge
      applied were irrelevant to her situation. PFR File, Tab 1 at 6. First, she argues
      that Chavez, 6 M.S.P.R. 404, applies only to voluntary disability retirement
      applications and that her resignation was involuntary. PFR File, Tab 1 at 5-7.
      However, we find that the proposition for which the administrative judge cited
      Chavez, i.e., that the appellant bears the burden of establishing her entitlement to
      a disability retirement annuity, nevertheless applies to this case.       ID at 3.
      Specifically, notwithstanding the manner of her separation, the appellant has
      voluntarily sought disability retirement benefits by filing an application with
      OPM. See 5 C.F.R. § 1201.56(a)(2) (the appellant has the burden of proof in an
      appeal from a final OPM decision involving retirement benefits if the appellant
      filed the application).   This is in contrast to situations in which an agency
      separates an employee from service and files a disability retirement application
      on her behalf. See 5 C.F.R. § 844.202.
¶16        As for Cummins v. Office of Personnel Management, 117 M.S.P.R. 261
      (2012), we find that this case stands for the proposition for which the
      administrative judge cited it and is germane to the appeal for the reasons
      explained by the administrative judge, see ID at 9. The administrative judge’s
      citation to Karapinka, 6 M.S.P.R. at 127, appears to be misplaced because that
                                                                                  9

case does not stand for the proposition contained in the ensuing parenthetical, see
ID at 9. Nevertheless, this apparent citation error is immaterial to the outcome of
the appeal because the proposition in the parenthetical is supported by other case
law.     See Bernard v. Office of Personnel Management, 37 M.S.P.R. 486, 491
(1988) (the administrative judge properly considered the appellant’s failure to
accept noninvasive therapeutic treatment in determining that the appellant had not
established that he was disabled for useful and efficient service).

                   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
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
                                                                               10

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.
