                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LUANNE HUNTINGTON,                              DOCKET NUMBER
                 Appellant,                          DE-844E-14-0314-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: July 31, 2015
       MANAGEMENT,
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           LuAnne Huntington, Layton, Utah, pro se.

           Linnette Scott, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND 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. For the reasons discussed



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     below, we GRANT the agency’s petition for review and REMAND the case to the
     field office for further adjudication in accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant is a Tax Examiner for the Internal Revenue Service (IRS).
     Initial Appeal File (IAF), Tab 5 at 66-68, 96; see Petition for Review (PFR) File,
     Tab 2 at 25, Tab 3 at 3. After more than 27 years of Federal service, she applied
     for disability retirement, citing hypothyroidism, gastritis, headaches, recurring
     cold sores, chronic fatigue, depression, and anxiety. IAF, Tab 5 at 30-31, 96-100.
     OPM denied the application in October 2013.          Id. at 22-27.     The appellant
     requested reconsideration, but OPM denied the request in March 2014.             Id.
     at 7-12.
¶3         The appellant filed a Board appeal, challenging OPM’s reconsideration
     decision. IAF, Tab 1. After holding the requested hearing, the administrative
     judge reversed OPM’s decision, finding that the appellant met the criteria for a
     disability retirement annuity under the Federal Employees’ Retirement System
     (FERS). IAF, Tab 33, Initial Decision (ID) at 13.
¶4         OPM has filed a petition for review of the initial decision. PFR File, Tab 1.
     The appellant has filed a response. PFR File, Tabs 2-4.
¶5         In an appeal from an OPM decision on a voluntary disability retirement
     application, the appellant bears the burden of proof by preponderant evidence.
     Christopherson v. Office of Personnel Management, 119 M.S.P.R. 635, ¶ 6
     (2013); 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for disability retirement under
     FERS, an employee must establish that: (1) she has 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 medical condition is
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     expected to continue for at least 1 year from the date the disability retirement
     application 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. Christopherson, 119 M.S.P.R. 635,
     ¶ 6; see 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a).
¶6         In its petition for review, OPM presented no substantive argument regarding
     the administrative judge’s findings that the appellant met requirements (1), (4),
     and (5). See PFR File, Tab 1 at 5-7; ID at 4. Therefore, the only issues in this
     appeal relate to requirements (2) and (3). We find that remand is necessary for
     credibility findings and further adjudication on these requirements.
     On remand, the administrative judge must make credibility determinations to
     resolve the disputed issues.
¶7         OPM argues that the administrative judge erred in failing to make
     credibility determinations to resolve the issues in dispute. 2       PFR File, Tab 1
     at 5-7. We agree.
¶8         The Board has clarified that there are two ways to meet the statutory
     requirement that an employee “be unable, because of disease or injury, to render
     useful and efficient service in the employee’s position.” Henderson v. Office of
     Personnel Management, 117 M.S.P.R. 313, ¶¶ 12-19 (2012). These are: (1) by
     showing that the medical condition caused a deficiency in performance,
     attendance, or conduct; or (2) by showing that the medical condition is
     incompatible with either useful and efficient service or retention in the position.
     Id., ¶ 16; see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2). The Board will
     consider all pertinent evidence in determining an appellant’s entitlement to
     disability retirement: objective clinical findings, diagnoses and medical opinions,
     subjective evidence of pain and disability, and evidence relating to the effect of

     2
        OPM also argues that the appellant’s impairments are situational to the IRS,
     precluding an award of disability retirement. PFR File, Tab 1 at 5-6. Because we are
     remanding the appeal for the administrative judge to make credibility findings and those
     findings may be relevant to this argument, we will not address it at this time.
                                                                                                   4

      the applicant’s condition on her ability to perform the duties of her position.
      Henderson, 117 M.S.P.R. 313, ¶ 19.
¶9          The administrative judge summarized some of the relevant evidence and
      testimony before concluding that the appellant met her burden of proof.                     ID
      at 2-3, 5-13. However, the initial decision does not contain credibility findings in
      support   of   that     conclusion.         See    Spithaler     v.    Office   of   Personnel
      Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision must identify all
      material issues of fact and law, summarize the evidence, resolve issues of
      credibility, and include the administrative judge’s conclusions of law and his
      legal reasoning, as well as the authorities on which that reasoning rests).
      Therefore, remand is appropriate.
¶10         On remand, the administrative judge should make credibility determinations
      to   address   the     disputed   issues.         See   Hillen    v.    Department     of   the
      Army, 35 M.S.P.R. 453, 458 (1987) (providing guidance regarding how to resolve
      credibility issues).    For example, the administrative judge should address any
      relevant inconsistencies between the appellant’s allegations concerning her
      condition and the evidence she provided in support of those allegations with
      respect to severity, duration, and impact on her employment. 3 The administrative
      judge also should address any relevant inconsistencies between the treating



      3
        The appellant reported suffering from depression and anxiety dating as far back as
      2010. See, e.g., IAF, Tab 19 at 2-17, Tab 20 at 2, Tab 36, Hearing Compact Disc
      (HCD) 1 (the appellant’s testimony). However, the available medical records contain
      no mention of those conditions until January 2013, when she asked a physician to
      complete her retirement paperwork. IAF, Tab 5 at 34. In addition, while the
      appellant’s allegations are now focused almost entirely on her mental health, HCD1 (the
      appellant’s testimony), her initial disability application materials listed only physical
      limitations, IAF, Tab 5 at 30. Further, the current record reflects little evidence of the
      appellant seeking treatment for her mental health condition prior to when she applied
      for disability retirement, except for a brief description of her condition by her primary
      physician on January 2, 2013. The record also contains little or no evidence of her
      seeking treatment from January 2013, to April 2014. HCD1 (M.A. testimony); IAF,
      Tab 5 at 7.
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      clinicians’ records, their testimony, their knowledge of the appellant’s job duties,
      and the appellant’s actual performance. 4
      On remand, the administrative judge should also hold a hearing to determine
      whether the appellant unreasonably refused treatment.
¶11         OPM next argues that the appellant is precluded from receiving the
      disability retirement annuity she seeks because she unreasonably refused
      treatment. PFR File, Tab 1 at 6-7. We find that the administrative judge should
      hold a new hearing to further adjudicate this matter.
¶12         An applicant for disability retirement benefits must establish the extent to
      which her disability can or cannot be controlled. Smedley v. Office of Personnel
      Management, 108 M.S.P.R. 31, ¶ 23 (2008).           When an employee is unable to
      render useful and efficient service because she fails or refuses to follow or to
      accept normal treatment, her disability flows, not from the disease or injury itself,
      but from her voluntary failure or refusal to take the available corrective or
      ameliorative action.    Id.   Accordingly, the voluntary refusal to accept facially
      reasonable treatment, standing alone, will bar entitlement to disability retirement
      benefits. Id.
¶13         Despite the appellant’s allegations that she has suffered from depression
      and anxiety for many years and that those impairments are disabling, the record
      documents only a brief period where she received mental health treatment. The
      appellant received counseling with one social worker between May and
      July 2014, and another between August and September 2014.                 HCD1 (C.C.
      testimony); IAF, Tab 30 at 4.       She also received a prescription for Zoloft in
      April 2014, Paxil in May 2014, and Cymbalta in July 2014, each new one

      4
        The appellant’s treating clinicians testified to varying degrees that her mental health
      could effect her ability to perform job duties. HCD1 (C.C. and M.A. testimony); HCD2
      (S.J. testimony). However, the record suggests these treating clinicians had limited
      knowledge of what those job duties were, with one mistakenly identifying her position
      as custodial. HCD1 (C.C. and M.A. testimony); HCD2 (S.J. testimony). In addition,
      the appellant’s employment records seem to suggest that her performance met or
      exceeded expectations when she was working. IAF, Tab 5 at 69, 72-73, Tab 24 at 37.
                                                                                         6

      following complaints about the other. HCD1 (M.A. testimony). The appellant
      reportedly failed to tolerate Paxil, because it caused her to feel tired, and Zoloft,
      because it made her feel funny, with one physician noting, “she has never really
      [given medications] much of a chance.” IAF, Tab 26 at 2. The appellant received
      a prescription for Escitalopram, another selective serotonin reuptake inhibitor, in
      October 2014. Id. at 2-3. The record is unclear regarding compliance with and
      efficacy of that prescriptive treatment or the prior prescription for Cymbalta.
¶14         The initial decision summarizes much of the aforementioned treatment. ID
      at 7-11. However, it does not contain any findings as to whether the appellant’s
      alleged disability is the result of her voluntary refusal to accept facially
      reasonable treatment, such as counseling, prescribed medications, or referrals to
      mental health specialists.     See generally Faragon v. Office of Personnel
      Management, 51 M.S.P.R. 63, 69-70 (1991) (finding an appellant’s refusal to see
      a psychiatrist or to take stress-reducing medications because he believed such
      medication would cloud his judgment was insufficient to justify his failure to
      undergo treatment). Nor does the hearing transcript contain adequate testimony
      from the appellant or others to clarify the issue. On remand, the administrative
      judge should hold a hearing to further develop the record on this matter and issue
      findings accordingly, including additional credibility determinations.            See
      generally Zucker v. Office of Personnel Management, 114 M.S.P.R. 288, ¶ 9
      (2010) (credibility determinations are best made first by the administrative
      judge).
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                                    ORDER
     For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
