                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     APRIL J. WOLSTENCROFT,                          DOCKET NUMBER
                   Appellant,                        SF-844E-14-0642-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: May 7, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Robert R. McGill, Walkersville, Maryland, for the appellant.

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


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL 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 under the Federal Employees’
     Retirement System (FERS). Generally, we grant petitions such as this one only


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     when: the 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).

                                        BACKGROUND
¶2        The appellant was employed as a Management and Program Analyst at the
     National Oceanic and Atmospheric Administration (NOAA). Initial Appeal File
     (IAF), Tab 4 at 88, 117.      According to her position description, the principal
     objective of her position was support for the Protected Resources’ Divisions’
     salmon recovery program, including information management, database systems
     knowledge, database administration, quality assurance, quality control, customer
     relations, and public outreach. Id. at 88-89. The duties of her position included
     independent      responsibility   for   planning,   coordinating,   and   performing
     administrative and management functions; analyzing and advising on changes in
     policies and resources that affect program objectives; receiving supervisory
     direction on policies, objectives, and results; and consulting with the supervisor
     on priorities and unusual situations. Id. at 88. The appellant was required to
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     identify problems, propose solutions, defend recommendations, and write and
     communicate clear guidelines. Id.
¶3         On September 6, 2012, while still employed by NOAA, the appellant
     applied for disability retirement under FERS.           Id. at 48-51.   She claimed she
     became disabled due to post-traumatic stress disorder (PTSD), major depressive
     disorder, anxiety, and panic disorder, complicated by migraine headaches and
     irritable bowel syndrome. Id. at 50-51. On September 5, 2012, OPM issued an
     initial decision denying the appellant’s disability retirement application. Id. at
     41-43.   In pertinent part, OPM found that she had failed to submit sufficient
     medical evidence to substantiate that she was suffering from a disabling medical
     condition. Id. at 43. Following a request for reconsideration by the appellant,
     OPM issued a May 29, 2014 reconsideration decision affirming its initial denial
     of the appellant’s application. Id. at 7-11.
¶4         Thereafter, the appellant filed an appeal of OPM’s reconsideration decision.
     IAF, Tab 1.       Following a hearing, the administrative judge issued an initial
     decision reversing OPM’s reconsideration decision. IAF, Tab 18, Initial Decision
     (ID) at 2, 10.
¶5         OPM has filed a petition for review of the initial decision.               Petition for
     Review (PFR) File, Tab 1.            On review, OPM contends that the administrative
     judge erroneously credited the appellant’s and her counselor’s testimonies. Id. at
     6. OPM further contends that the administrative judge disregarded facts showing
     that the appellant (1) was able to continue to work until 2012 despite her claim
     that she became disabled in 2006, (2) stopped taking medication in 2012, and
     (3) barely attended any therapy sessions in 2014. Id. at 8-9. The appellant has
     responded to the petition for review. PFR File, Tab 2.

                           DISCUSSION OF ARGUMENTS ON REVIEW
¶6         An employee bears the burden of proving by preponderant evidence his
     entitlement      to    disability   retirement.   Henderson   v.   Office   of    Personnel
                                                                                       4

     Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(b)(2)(ii).          To
     qualify for disability retirement benefits under FERS, an individual must meet the
     following requirements: (1) the individual must have completed at least 18
     months of creditable civilian service; (2) the individual must, while employed in a
     position subject to FERS, have become 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 must be incompatible with either
     useful and efficient service or retention in the position; (3) the disabling medical
     condition must be expected to continue for at least 1 year from the date the
     disability retirement benefits application is filed; (4) accommodation of the
     disabling medical condition in the position held must be unreasonable; and (5) the
     individual must not have declined a reasonable offer of reassignment to a vacant
     position. 5 U.S.C. § 8451(a); Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R.
     § 844.103(a).
¶7        The administrative judge found that it was undisputed that the appellant
     timely filed her FERS application, had completed at least 18 months of creditable
     civilian service, and had not declined a reasonable offer of reassignment to a
     vacant position.   ID at 3.    The administrative judge further found that the
     appellant suffered from PTSD and major depressive disorder that rendered her
     incapable of useful and efficient service, and that she had shown that her
     disabling conditions were likely to last for more than a year from September
     2012. ID at 8-10. In addition, the administrative judge found that the appellant
     had shown that accommodation of her conditions in the Management and Program
     Analyst position was unreasonable and that she was never offered an
     accommodation to a vacant position. ID at 10.
¶8        The parties do not dispute that the appellant had completed at least 18
     months of creditable civilian service and that she had not declined a reasonable
     offer of reassignment, and we discern no basis for disturbing these findings on
     review.   Therefore, the only remaining issues in this appeal relate to the
                                                                                       5

      appellant’s medical condition and its effects on her ability to perform in her
      former position, i.e., eligibility criteria (2), (3), and (4).   For the following
      reasons, we find that the appellant has met these criteria and is entitled to a
      disability retirement.
¶9          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”:     (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.     Henderson     v.   Office    of   Personnel
      Management, 117 M.S.P.R. 313, ¶¶ 12-19 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5
      C.F.R. § 844.103(a)(2).     Under the first method, an appellant can establish
      entitlement by showing that her medical condition affected her ability to perform
      specific work requirements, prevented her from being regular in attendance, or
      caused her to act inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the
      second method, the appellant can show that the medical condition is inconsistent
      with working in general, working in a particular line of work, or working in a
      particular type of setting. Id.
¶10         A determination of disability is based on objective clinical findings,
      diagnoses and medical opinions, subjective evidence of pain and disability, and
      evidence showing the effect of the applicant’s condition on her ability to perform
      the duties of her position. Id., ¶ 19. “OPM must consider all of an applicant’s
      competent medical evidence, and an applicant may prevail based on medical
      evidence that . . . consists of a medical professional’s conclusive diagnosis, even
      if based primarily on his/her analysis of the applicant’s own descriptions of
      symptoms and other indicia of disability.” Vanieken-Ryals v. Office of Personnel
      Management, 508 F.3d 1034, 1041 (Fed. Cir. 2007).
¶11         With regard to diagnoses and medical opinions, the appellant has presented:
      (1) a May 15, 2012 letter from her counselor stating that she had first met the
                                                                                         6

      appellant on September 20, 2010, had conducted 41 individual therapy sessions
      with her, and that she had diagnosed the appellant with PTSD based on the
      appellant’s history of physical and emotional childhood abuse, nightmares, panic
      attacks, disassociation, and hypervigilance; (2) biweekly therapy notes with her
      counselor from March 2011 to June 2012, documenting the appellant’s symptoms
      and her progress; (3) an October 23, 2013 letter from her counselor reiterating the
      appellant’s initial diagnosis of PTSD and stating that the appellant also meets the
      criteria for major depressive disorder, as evidenced by her prolonged periods of
      sadness, feelings of hopelessness, helplessness, and worthlessness; and (4) her
      counselor’s testimony stating that she is a licensed counselor in the State of
      Oregon, specializes in adult PTSD, and that she had diagnosed the appellant,
      using the Diagnostic and Statistical Manual of Mental Disorders-IV, with PTSD
      and major depressive disorder based on the appellant’s self-report, a group
      therapy report, and sessions with the appellant after an initial diagnosis of anxiety
      disorder. IAF, Tab 4 at 27-28, 54-55, 59-87; Hearing Compact Disc (HCD).
¶12        As to evidence of subjective pain and disability, the appellant presented:
      (1) her counselor’s therapy notes from March 2011 to June 2012 recording the
      subjective complaints the appellant made during office visits; and (2) her own
      testimony that she became disabled in 2006 and, since then, has been suffering
      from numerous physical limitations. IAF, Tab 4 at 59-87; HCD.
¶13        Concerning the effect of the appellant’s condition on her ability to perform
      in her former position, she presented:        (1) descriptions of the duties and
      requirements of her former position; (2) a May 15, 2012 letter from her counselor
      stating that the appellant could no longer perform her job duties because they
      required focus, concentration, and attention to detail, and the appellant’s PTSD
      rendered her incapable of focusing and concentrating; (3) her counselor’s
      testimony that two major components of the appellant’s job—significant attention
      to detail and communication—are nearly impossible for the appellant to engage in
      when she is experiencing PTSD symptoms and that the appellant’s depression had
                                                                                       7

      pervaded all aspects of her life, including her work; (4) her own testimony that
      her psychiatric conditions result in an inability to focus or concentrate, and
      therefore prevent her from performing her job, which requires concentration and
      attention to detail; and (5) an October 23, 2013 letter from the appellant’s
      counselor stating the appellant could not perform the duties of her position, or
      any similar position, as of May 2011. IAF, Tab 4 at 27-28, 54-55, 88-89; HCD.
¶14        We find that, based on the totality of the evidence, the appellant has met her
      burden of establishing that, while employed at NOAA, she suffered from a
      disabling medical condition that was incompatible with useful and efficient
      service or retention in her position.        In particular, we agree with the
      administrative judge’s finding that the appellant was disabled due to PTSD. 2
¶15        OPM’s contentions on review do not provide a basis for disturbing this
      finding.   While OPM contends that the appellant’s and her counselor’s
      testimonies are inconsistent with evidence showing the appellant engaged in rock
      climbing, was enrolled in nursing school, and participated in numerous other
      outdoor social activities, PFR File, Tab 1 at 6-7, the administrative judge
      considered the fact that the appellant participated in outdoor activities and was
      enrolled in classes in her initial decision, ID at 7-8. However, as noted by the
      administrative judge, the appellant’s counselor testified that it was not
      inconsistent for the appellant to be able to attend classes but not be able to
      perform her job, because classes are voluntary and there is no pressure, as
      opposed to her job, which requires responsibility for completing her work and
      increases her anxiety level.   HCD.   The appellant’s counselor further testified
      that, even in low pressure environments, the appellant’s brain still shuts down.
      Id. Although OPM states that the testimony of the appellant’s counselor is not
      credible because it is based on the appellant’s subjective statements, the U.S.
      Court of Appeals for the Federal Circuit has noted that, because psychological
      2
        Because we find that the appellant was disabled due to PTSD, we decline to make a
      findin g regarding whether she also was d isabled due to major depressive disorder.
                                                                                           8

      issues are often almost exclusively diagnosed based upon patient-reported
      symptoms, medical reports relying exclusively on an appellant’s own description
      of her psychological symptoms are relevant evidence for purposes of determining
      disability retirement eligibility. Vanieken-Ryals, 508 F.3d at 1042. OPM has not
      called into question the appellant’s counselor’s professional competence, has not
      alleged that the counselor’s professional opinions are not based on established
      diagnostic criteria, or alleged that these opinions are inconsistent with generally
      accepted professional standards. See id. at 1042-43. In addition, OPM has failed
      to present any medical evidence contrary to that presented by the appellant. See
      Henderson, 117 M.S.P.R. 313, ¶ 23 (it is well established that subjective evidence
      may be entitled to great weight on the matter of disability, especially where such
      evidence is not contradicted by the record). Accordingly, we discern no basis for
      disturbing the administrative judge’s decision to credit the appellant’s counselor’s
      testimony on this issue.
¶16         OPM also contends that the appellant’s performance between 2006 and
      2012 was satisfactory and that she received a promotion in February 2007 and
      numerous cash awards between 2006 and 2012. PFR File, Tab 1 at 8. While
      OPM’s contention may show that the appellant cannot establish entitlement to a
      disability   award   under   the   first   method   articulated   by   the   Board   in
      Henderson, 117 M.S.P.R. 313, ¶ 16, which requires than an appellant show that
      her medical condition affected her ability to perform specific work requirements,
      prevented her from being regular in attendance, or caused her to act
      inappropriately, the appellant may still establish entitlement under the second
      method. We find that the appellant has established entitlement under the second
      method because she has shown that her medical condition is inconsistent with
      working in her position or any similar position. See id.
¶17         Regarding the agency’s assertions that the appellant did not seek adequate
      treatment for her conditions, PFR File, Tab 1 at 9, the appellant contended in her
      disability retirement application and testified that she had complied with all
                                                                                        9

      treatment regimes. IAF, Tab 4 at 50; HCD; cf. Smedley v. Office of Personnel
      Management, 108 M.S.P.R. 31, ¶ 23 (2008) (when an employee 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). The appellant stated that her
      treatment   regimes    included   dialectal   behavorial   therapy,    sensorimotor
      psychotherapy, prolonged exposure treatment and medication to treat anxiety and
      panic disorders. IAF, Tab 4 at 50; HCD. The appellant’s counselor’s statements
      corroborate that, between 2010 and 2013, the appellant was being treated with
      dialectical behavioral therapy, sensorimotor psychotherapy, and prolonged
      exposure treatments with limited success.      IAF, Tab 4 at 27.      The counselor
      testified that attempting a medicine regime with the appellant would be difficult
      because to effectively medicate her would require prescribing a dosage that would
      knock her out, rendering her incapable of working. Id. OPM has not presented
      any medical evidence that would shed doubt on the appellant’s counselor’s
      testimony. See Henderson, 117 M.S.P.R. 313, ¶ 23.
¶18        We discern no other basis for disturbing the administrative judge’s finding
      that the appellant met her burden of establishing that she suffered from a
      disabling medical condition that was incompatible with useful and efficient
      service or retention in her position. While the appellant has not submitted any
      evidence of relevant objective clinical findings, our reviewing court has found
      that such evidence is not necessary for an appellant to establish entitlement to a
      disability retirement. See Vanieken-Ryals, 508 F.3d at 1041. We also find the
      appellant’s counselor’s conclusions persuasive because they are based on a long
      familiarity with the appellant and her conditions.     See Tan-Gatue v. Office of
      Personnel Management, 90 M.S.P.R. 116, ¶ 11 (2001) (the Board gives greater
      weight to medical conclusions based on a long familiarity with a patient than to
      those based on a brief association or single examination), aff’d, 52 F. App’x 511
      (Fed. Cir. 2002).
                                                                                    10

¶19        Finally, the appellant has met the remaining criteria for establishing
      entitlement to a disability retirement. The appellant’s counselor opined in her
      October 23, 2013 letter that the appellant’s condition had lasted well over 12
      months and was likely to be permanent in nature. IAF, Tab 4 at 27-28. We
      therefore agree with the administrative judge’s finding that the appellant
      established that her PTSD was expected to continue for at least 1 year from
      September 6, 2012—the date the disability retirement benefits application was
      filed. ID at 10; see Henderson, 109 M.S.P.R. 529, ¶ 8.           As noted by the
      administrative judge, the appellant’s supervisor indicated that an accommodation
      was not possible due to the severity of the appellant’s medical condition and the
      requirements of the position.    IAF, Tab 4 at 106.   The appellant’s supervisor
      further indicated that reassignment was not possible because there were no vacant
      positions within the agency for which the appellant met the minimum
      qualification standards. Id. at 107-08. Thus, we discern no basis for disturbing
      the administrative judge’s finding that the appellant established that an
      accommodation of her disabling medical condition in the Management and
      Program    Analyst    position    was   unreasonable.       ID     at   10;   see
      Henderson, 109 M.S.P.R. 529, ¶ 8.
¶20        Based on the foregoing, we AFFIRM the initial decision reversing OPM’s
      reconsideration decision.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   You must submit your request to the court at the following
      address:
                                                                                 11

                           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
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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems Protection Board
                                                                           12

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.
