                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRENDA L. THOMAS,                               DOCKET NUMBER
                  Appellant,                         DE-844E-15-0524-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: May 6, 2016
       MANAGEMENT,
                   Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Brenda L. Thomas, Litchfield Park, Arizona, pro se.

           Thomas Styer, 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 its reconsideration decision denying the
     appellant’s application for disability retirement benefits under the Federal
     Employees’ Retirement System (FERS). Generally, we grant petitions such as


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     this one only 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
     administrative 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, 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        On or about March 15, 2014, the appellant, a GS-7 Immigration Services
     Assistant, submitted an application for disability retirement benefits under FERS
     to her employing agency, the Department of Homeland Security (DHS). Initial
     Appeal File (IAF), Tab 6 at 83-84. On her application, the appellant stated that
     she became disabled for her position in November 2013 due to fibromyalgia
     because she could not sit for more than 15 to 30 minutes at a time, could not walk
     or stand for “very long,” and her arms and wrists sometimes became weak,
     affecting her ability to lift items. Id. at 83. After completing its portions of the
     disability retirement application, the agency forwarded the application package to
     OPM. Id. at 83-91.
¶3        On June 10, 2015, OPM denied the appellant’s disability retirement
     application, finding that the evidence did not establish that her medical condition
     prevented her from performing her duties or that reasonable accommodation was
     not possible. Id. at 76-78. The appellant requested reconsideration of OPM’s
                                                                                       3

     initial decision and provided additional medical documentation. Id. at 8-75. In a
     July 23, 2015 reconsideration decision, OPM affirmed its initial decision. Id.
     at 4-6.
¶4           The appellant timely appealed the reconsideration decision to the Board and
     requested a hearing, which she subsequently waived. IAF, Tabs 1, 9. In an initial
     decision based on the written record, the administrative judge reversed OPM’s
     reconsideration decision, finding that the appellant had shown by preponderant
     evidence that she was entitled to disability retirement benefits.     IAF, Tab 12,
     Initial Decision (ID). OPM has filed a timely petition for review of the initial
     decision, and the appellant has responded in opposition to OPM’s petition for
     review. Petition for Review (PFR) File, Tabs 1, 3.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶5           An employee bears the burden of proving by preponderant evidence her
     entitlement to disability retirement.     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 benefits under FERS, an employee must show
     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 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 is 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; 5 C.F.R.
     § 844.103(a).
                                                                                        4

¶6         The administrative judge found that the appellant timely filed her FERS
     disability retirement 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 4.   The administrative judge further found that the
     appellant had shown that she suffered from fibromyalgia, which rendered her
     incapable of useful and efficient service, and that her disabling condition was
     likely to last for more than 1 year. ID at 3-6. In addition, the administrative
     judge found that the appellant had shown that her medical condition could not be
     reasonably accommodated. ID at 6-7.
¶7         The parties do not dispute that the appellant has completed at least
     18 months of creditable civilian service or that she has not declined a reasonable
     offer of reassignment, and we discern no basis for disturbing these findings on
     review. PFR File, Tabs 1, 3. Therefore, the only remaining issues in this appeal
     relate to the appellant’s medical condition and its effects on her ability to perform
     in her position, i.e., eligibility criteria (2), (3), and (4).     For the following
     reasons, we agree with the administrative judge that the appellant has met these
     criteria and has shown that she is entitled to a disability retirement.
     The administrative judge correctly found that the appellant has shown by
     preponderant evidence that she cannot render useful and efficient service in her
     position and that her disabling condition is likely to last for at least 1 year.
¶8         As noted above, an applicant for disability retirement under FERS must
     show, among other things, that she is “unable, because of disease or injury, to
     render useful and efficient service in [her] position.” 5 U.S.C. § 8451(a)(1)(B).
     An applicant may satisfy this statutory requirement in one of two ways; namely,
     by showing that the medical condition: (1) caused a deficiency in performance,
     attendance, or conduct; or (2) is incompatible with useful and efficient service or
     retention   in     the   position.      Henderson      v.   Office    of   Personnel
     Management, 117 M.S.P.R. 313, ¶ 16 (2012) (articulating this standard in the
     context of an application for disability retirement under the Civil Service
                                                                                                    5

     Retirement           System);       see     Jackson        v.        Office     of    Personnel
     Management, 118 M.S.P.R. 6, ¶ 7 (2012) (applying the holding in Henderson to
     disability        retirement    cases     under   FERS);         see     also    5    U.S.C.   §
     8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2). Under the first method, an applicant
     may establish her entitlement to a disability annuity by showing that the medical
     condition affected her ability to perform specific work requirements, prevented
     her from being regular in attendance, or caused her to act inappropriately.
     Jackson, 118 M.S.P.R. 6, ¶ 8. Under the second method, she may show that the
     medical condition is inconsistent with working in general, in a particular line of
     work, or in a particular setting. Id. It is not necessary, however, that the medical
     evidence unambiguously and without contradiction shows how the medical
     condition affects specific job duties or indicates that the employee cannot meet
     the requirements of her position to establish entitlement to disability retirement
     benefits.     Id.     Rather, an employee establishes her entitlement to disability
     retirement benefits if, considering the totality of the evidence, it is more likely
     true than untrue that the employee’s medical impairments preclude her from
     rendering useful and efficient service in her position. See id.
¶9         A determination of disability must be based on the probative value of all the
     evidence, including: objective clinical findings; diagnoses and medical opinions;
     subjective evidence of pain and disability; and all evidence relating to the effect
     of the employee’s condition on her ability to perform in the position she last
     occupied.     Henderson v. Office of Personnel Management, 109 M.S.P.R. 529,
     ¶ 12 (2008).         “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).
                                                                                        6

¶10        Here,    the   record   includes   a   number   of   medical    records   from
      November 2013—the date the appellant claims she became disabled for work—
      through the present describing her subjective symptoms and limitations, as she
      reported them to the medical professionals, and their diagnoses of fibromyalgia. 2
      IAF, Tab 6 at 83.     Specifically, the record contains:     (1) November 5 and
      November 19, 2013 treatment records by Dr. C.G., a physical medicine and
      rehabilitation physician, noting that, although the appellant’s workplace injuries
      were resolving, she had developed “widespread diffuse myofascial-like myalgias
      with multiple areas of bilateral tenderness noted along with complaints of fatigue
      and tiredness” and opining that fibromyalgia “may be a significant contributing
      factor to her continued complaints and continued more migratory complaints,”
      id. at 10, 69-71; (2) November 26, 2013, February 26, 2014, March 14, 2014, and
      April 8, 2014 treatment records by Dr. R.S., a rheumatologist, stating that: the
      appellant complained of pain, fatigue, and sleeplessness and that her presentation
      was consistent with fibromyalgia; she could not sit for long periods of time due to
      her fibromyalgia; and she had not tolerated the prescribed pain medication,
      including Lyrica, which made her too sleepy, id. at 103-08, 111; (3) February 10,
      March 17, and December 10, 2014 records by Dr. A.S., the appellant’s primary
      care physician, stating that the appellant was diagnosed with fibromyalgia, she
      needed to get up every 30 minutes at work due to her back pain, and she had not
      tolerated several prescribed medications, id. at 72-73, 100-02, 110; (4) March 17
      and April 11, 2014 reports by C.E., a nurse practitioner, stating that the appellant
      presented with back and shoulder pain and that she was unable to sit for an
      extended period of time, id. at 94-98, 112; and (5) a November 10, 2015 treatment
      record from a pain management clinic stating that: the appellant presented with
      fibromyalgia; experienced constant widespread and regional pain, sinus problems,
      2
         The record additionally contains medical records from September through
      November 19, 2013, regarding the appellant’s treatment and physical therapy for
      injuries sustained from workplace falls on August 29 and October 8, 2013. IAF, Tab 6
      at 10-71.
                                                                                      7

      headache, fatigue, joint swelling, muscle cramps, gait difficulties, anxiety, and
      depression; and she had been referred to physical therapy for pain relief, IAF,
      Tab 10 at 2-4. The record also contains a contrary report; namely, a June 16,
      2014 medical evaluation for the Arizona Department of Economic Security,
      Disability Determination Services, stating, among other things, that the
      appellant’s “fibromyalgia testing was negative.” IAF, Tab 11 at 11-13.
¶11        The record additionally contains several medical opinions regarding the
      appellant’s fibromyalgia and her ability to perform her duties.     In particular,
      Dr. A.S. completed a physical residual functional capacity questionnaire dated
      December 10, 2014, stating that the appellant was unable to work due to pain,
      which worsened with prolonged sitting or standing and with increased stress, and
      drowsiness caused by her medication. IAF, Tab 6 at 72-73. Dr. A.S. explained
      that the appellant’s impairments have lasted or could be expected to last at least
      12 months and stated that the appellant was not a malingerer. Id. at 72. Dr. A.S.
      further stated that the appellant’s experience of pain and other symptoms was
      “frequently” severe enough to interfere with the attention and concentration
      required to perform simple work tasks. Id. at 73. In a September 23, 2015 note,
      Dr. A.S. stated again that the appellant was unable to work due to her
      fibromyalgia, explaining that the appellant could not use a computer due to her
      right wrist pain, which worsened with prolonged use, and could not sit for more
      than 15 minutes at a time due to her neck and back pain and swelling. IAF, Tab 8
      at 3. The record contains a contrary medical opinion by Dr. D.C. recommending
      that the appellant’s application for disability retirement be denied because, upon
      review of the available medical documentation, the record did not support a
      finding that the appellant’s impairment due to musculoskeletal conditions was
                                                                                             8

      severe enough to result in occupational disability for her sedentary job. 3 IAF,
      Tab 6 at 92.
¶12         As to subjective evidence of pain and disability, the record contains written
      statements from the appellant and her mother, both dated September 24, 2015.
      IAF, Tab 8 at 4-5. In the appellant’s written statement, she explained that: she
      cannot sit for longer than 15 minutes at a time before her upper and lower back
      start to swell and she is in “excruciating pain”; she cannot spend more than 30
      minutes in a grocery store because her lower back and hips start to hurt; her right
      forearm and wrist are constantly swollen and she sometimes has “no strength” in
      her right hand; her body is stiff and it is difficult to walk for the first moments
      after she stands up; her right toes are stiff and it is painful to straighten them; the
      bottom of her right foot is sometimes very tender; her left knee is sometimes
      swollen, making it difficult to walk; she needs to take a break after 15 minutes of
      housework because her lower back and hips start to hurt; and she spends most of
      the day lying down. Id. at 5. She also stated that she takes Lyrica at night for
      pain, which allows her to sleep through the night, but its effects leave her
      “non-functioning throughout the next day.” Id. The appellant’s mother explained
      that: the appellant’s daily activities are “very limited”; she spends most of the
      day lying around; she cannot go shopping anymore because she is “in pain and it
      hurts her to walk, sit or stand too long because her joints swell and hurt”; and she
      is “always stressed and depressed” and “is just a shell of herself, of what her life
      was before her falls.” Id. at 4.
¶13         As to other evidence showing the effect of the appellant’s condition on her
      ability to perform in her position, the record contains: (1) a position description
      indicating that the appellant’s duties include, among other things, assisting in the
      processing and adjudication of immigration applications and petitions by
      “conducting security checks, supporting Immigration Services Officers, managing
      3
       Although the date of Dr. D.C.’s medical opinion is partially illegible, it appears to be
      dated January 23, 2015. IAF, Tab 6 at 92.
                                                                                         9

      correspondence, maintaining customer support, processing documents and fees,
      and performing analysis on files, reports, and information systems or databases,”
      IAF, Tab 6 at 113-14; (2) a performance plan and appraisal for 2013, id. at 115-
      29; and (3) the appellant’s supervisor’s statement indicating that the appellant’s
      attendance had been deficient since January 2014 and that it was impossible to
      assign the appellant any duties because the appellant “never knows if she will
      have the ability to perform them due to constant pain” or if she will be in “so
      much pain that it makes it impossible for her to report for duty,” id. at 85-86.
¶14         On the basis of this record, the administrative judge determined that the
      appellant met her burden of establishing that, while employed at DHS, she
      suffered from a disabling medical condition that was incompatible with useful
      and efficient service or retention in her position. ID at 4-6. Specifically, the
      administrative judge found that: the appellant was disabled due to fibromyalgia
      because she could not sit or stand for more than 15 minutes at a time; the
      prescribed medication interfered with her ability to maintain a clear mind, as
      required to complete her assigned tasks; and her medical condition prevented her
      from being in regular attendance. ID at 5-7. The administrative judge rejected
      OPM’s arguments below that the appellant had been noncompliant with treatment,
      explaining that, although one treatment record noted concern with the appellant’s
      efforts in April 2014, medical records showed that therapy efforts were ongoing
      and that any concerns about the appellant’s efforts appear to have been satisfied
      by the appellant’s later conduct. ID at 6; IAF, Tab 6 at 94. Additionally, the
      administrative judge found that the appellant met her burden of showing that her
      disabling condition was expected to continue for at least 1 year from the date of
      her application for disability retirement.     ID at 4-5.   We agree, and, for the
      reasons discussed below, we find that OPM’s contentions on review do not
      provide any basis to disturb these findings.
¶15         On review, OPM argues that the administrative judge erred in finding that
      the appellant was entitled to disability retirement because the medical evidence
                                                                                                   10

      did not “unambiguously and without contradiction” indicate that she could not
      perform the duties or meet the requirements of her position. PFR File, Tab 1 at 6.
      Specifically, according to OPM, the June 16, 2014 Arizona Disability
      Determination Services evaluation, which indicates that the appellant tested
      negative for fibromyalgia, and the January 23, 2015 medical opinion by Dr. D.C.,
      which found that the medical evidence did not support a finding of disability,
      establish   contradiction     and    ambiguity     and    “render     the   case   less    than
      preponderant.” PFR File, Tab 1 at 6-7; see IAF, Tab 6 at 92, Tab 11 at 11-13.
¶16         As stated above, however, it is not necessary that the medical evidence
      unambiguously and without contradiction show how the medical condition affects
      specific job duties or indicate that the employee cannot meet the requirements of
      her   position    to   establish     entitlement   to    disability   retirement       benefits.
      Henderson, 117 M.S.P.R. 313, ¶¶ 16, 18.            Moreover, the administrative judge
      considered the contrary evidence—specifically, the June 14, 2014 evaluation for
      the Arizona Disability Determination Services stating that “Fibromyalgia testing
      was negative” and other medical reports, most of which were from 2013—and
      concluded that they were outweighed by the other evidence of record. ID at 4-5;
      IAF, Tab 6 at 5, Tab 11 at 11-13.           Although the administrative judge did not
      discuss the January 23, 2015 medical opinion, an administrative judge’s failure to
      mention all of the evidence of record does not mean that he did not consider it in
      reaching    his   decision.         Diggs   v.   Department     of    Housing      &      Urban
      Development, 114 M.S.P.R. 464, ¶ 8 (2010). In any event, we agree with the
      administrative judge that the record evidence showing that the appellant’s
      fibromyalgia precludes her from rendering useful and efficient service in her
      position outweighs the contrary evidence cited by OPM.
¶17         In assessing the probative weight of medical opinion, the Board considers
      whether the opinion was based on a medical examination, whether the opinion
      provided a reasoned explanation for its findings as distinct from mere conclusory
      assertions, the qualifications of the expert rendering the opinion, and the extent
                                                                                        11

and duration of the expert’s familiarity with the treatment of the appellant. Slater
v. Department of Homeland Security, 108 M.S.P.R. 419, ¶ 15 (2008). Here, the
June 16, 2014 evaluation by the Arizona Disability Determination Services is
based on a one-time examination by Dr. B.B. IAF, Tab 11 at 11-13. In addition,
the evaluation provides no explanation for its statement that “Fibromyalgia
testing was negative,” failing to even identify what test Dr. B.B. administered to
the appellant or what diagnostic criteria he considered. 4 Id. at 13. Likewise,
there is no indication that Dr. D.C. examined the appellant prior to rendering the
January 23, 2015 medical opinion or that he had any familiarity with the
treatment of the appellant; rather, he appears to have merely reviewed some of the
appellant’s medical records to make a recommendation on her application for
disability retirement. IAF, Tab 6 at 92. On the other hand, as discussed above,
Dr. C.G., Dr. A.S., Nurse C.E., and Dr. R.S. had ongoing treatment relationships
with the appellant, their findings were based on medical examinations of the
appellant,   and   their   opinions    and   treatment    records    contained    detailed
descriptions of the appellant’s presentation and subjective complaints. IAF, Tab
6 at 10, 69-73, 93-112, Tab 8 at 3. Accordingly, we find that the diagnoses and
medical opinions by Dr. C.G., Dr. A.S., Nurse C.E., and Dr. R.S. are entitled to
more weight than the June 16, 2014 evaluation and the January 23, 2015 opinion.
See Slater, 108 M.S.P.R. 419, ¶ 15. We thus find no merit to OPM’s assertion
these two reports outweigh the other medical evidence or “render the case less
than preponderant.” PFR File, Tab 1 at 6-7.


4
  We take notice of the fact that, while there are currently no diagnostic laboratory tests
for fibromyalgia, the American College of Rheumatology has established criteria for a
diagnosis of fibromyalgia, which includes a history of widespread pain lasting more
than 3 months and other general physical symptoms such as fatigue, waking
unrefreshed, and cognitive (memory or thought) problems. Questions and Answers
about Fibromyalgia–How is Fibromyalgia Diagnosed?, National Institute of Arthritis
and        Musculoskeletal         and       Skin        Diseases       (July       2014),
http://www.niams.nih.gov/health_info/fibromyalgia; 5 C.F.R. § 1201.64 (stating that
official notice may be taken of matters that can be verified).
                                                                                      12

¶18        OPM further argues that the administrative judge erred by relying on the
      September 23, 2015 statement by Dr. A.S. and the November 10, 2015 treatment
      record from the pain management clinic on the grounds that they are conclusory
      and fail to explain how the appellant is prevented from performing her job tasks
      or unable to work at any job, in a particular line of work, or in her work setting.
      Id. at 4-6. As stated above, however, medical evidence showing how a medical
      condition affects specific job duties or indicating that an appellant cannot meet
      the requirements of her position is not required to prove entitlement to disability
      retirement benefits. Henderson, 117 M.S.P.R. 313, ¶ 18. Moreover, we disagree
      with OPM’s contention that these records are conclusory.       The September 23,
      2015 letter from Dr. A.S., which states that the appellant has fibromyalgia and is
      unable to work, provides a reasoned explanation for this conclusion; specifically,
      Dr. A.S. explained that the appellant cannot sit for more than 15 minutes at a time
      due to her neck and back pain and swelling and cannot use a computer due to
      right wrist pain, which worsens with prolonged use.       IAF, Tab 8 at 3.     The
      November 10, 2015 treatment record states that the appellant presented with
      fibromyalgia, describes her symptoms, lists her prescribed medications, and states
      that she has been referred to physical therapy. IAF, Tab 10 at 2-5. We discern no
      conclusory medical opinion in this report, and the administrative judge did not
      rely on it for any such opinion. Id.; ID at 5. Rather, the administrative judge
      cited this report because it lent support to the September 23, 2015 letter from
      Dr. A.S. and confirmed, based on the doctor’s observation, the appellant’s
      complaints of pain and weakness.       ID at 5.    The administrative judge also
      mentioned that this treatment record was important because it noted that the
      appellant was taking Lyrica and that she had been referred to physical therapy.
      Id. Moreover, we reject OPM’s argument to the extent its premise is that these
      reports’ diagnosis of fibromyalgia are based on the appellant’s self-reported
      symptoms. IAF, Tab 10 at 2. Furthermore, qualified medical opinions based on
      an appellant’s self-reported symptoms are probative of disability, especially
                                                                                          13

      where, as here, they are corroborated by the record.            See Vanieken-Ryals,
      508 F.3d at 1040-44.
¶19         OPM further argues that the administrative judge erred by affording great
      weight to the written statements by the appellant and her mother because the
      record “clearly lacks competent medical evidence to support and corroborate
      those written statements.” PFR File, Tab 1 at 6. As discussed above, however,
      the appellant’s pain, weakness, fatigue, inability to sit or stand for more than
      15 minutes at a time, intolerance of pain medication, and drowsiness associated
      with Lyrica are well supported by the medical evidence of record. 5 Where, as
      here, subjective evidence, such as testimony or written statements, regarding an
      appellant’s symptoms is uncontradicted in the record, it “may be entitled to great
      weight on the matter of disability.” Vanieken-Ryals, 508 F.3d at 1041 (quoting
      Chavez v. Office of Personnel Management, 6 M.S.P.R. 404, 422 (1981)). Thus,
      we find that the administrative judge properly afforded significant weight to the
      written statements provided by the appellant and her mother. IAF, Tab 8 at 4-5.
¶20         We discern no other basis for disturbing the administrative judge’s findings
      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 and that her disabling condition is expected to
      last at least 1 year from the date of her disability retirement application. See
      Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
      to disturb the administrative judge’s findings where she considered the evidence
      as a whole, drew appropriate inferences, and made reasoned conclusions);

      5
        In addition to the medical evidence supporting the appellant’s subjective complaints,
      we take notice of the fact that her statements regarding her pain, fatigue, and muscle
      weakness are consistent with the characteristic symptoms of fibromyalgia. See
      Stedman’s Medical Dictionary 725 (Lippincott Williams & Wilkens 28th ed. 2006);
      5 C.F.R. § 1201.64. We also take notice of the fact that sleepiness and difficulty
      concentrating are common side effects of Lyrica. See Medication Guide, Lyrica, U.S.
      Food       and      Drug     Administration,     http://www.fda.gov/downloads/Drugs/
      DrugSafety/UCM152825.pdf (last visited Mar. 21, 2016); 5 C.F.R. § 1201.64.
                                                                                       14

      Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
      (1987) (same).
      The administrative judge correctly found that the appellant’s disabling condition
      could not be reasonably accommodated.
¶21           Under FERS, an individual is not eligible for disability retirement benefits
      if there is a reasonable accommodation for the disabling condition in the position
      held.        5    U.S.C.    §   8451(a);    Confer    v.   Office   of    Personnel
      Management, 111 M.S.P.R. 419, ¶ 29 (2009); 5 C.F.R. § 844.103(a)(4). Here, the
      employing agency indicated that the appellant had been offered, but declined,
      several reasonable accommodations, including relocation of her work station, a
      work station that would allow her to alternate between sitting and standing
      throughout the day, and an assignment to lighter duty tasks within her job
      description. IAF, Tab 6 at 87. The administrative judge found, however, that the
      appellant’s disabling condition could not be reasonably accommodated because:
      her attendance had been unacceptable and was unlikely to improve; her pain
      prevented her from sitting or standing for more than 15 minutes at a time and
      alternating between them more frequently would be of little help; and her
      prescribed medication interfered with her ability to maintain a clear mind, which
      affected her ability to complete her assigned tasks. ID at 6-7.
¶22           On review, OPM argues that the administrative judge erred in finding that
      the appellant could not be reasonably accommodated because: “1) there is no
      documentary medical or other evidence showing [the offered accommodations]
      were unreasonable, and/or 2) she made no attempt to perform the accommodated
      duties showing they were unreasonable.” PFR File, Tab 1 at 7. The relevant
      regulations, however, provide only that, to receive a disability annuity, an
      individual must show that “[a]ccommodation of the disabling medical condition
      in the position held must be unreasonable.” 5 C.F.R. § 844.103(a)(4). We find
      no support in the relevant statutes, regulations, or case law for OPM’s assertion
      that an applicant for disability retirement benefits must attempt to perform her
                                                                                       15

      duties with an accommodation to demonstrate that the accommodation is
      unreasonable. Further, there is no requirement that an appellant submit evidence
      specifically showing that a given accommodation is unreasonable.          See, e.g.,
      Thomas v. Office of Personnel Management, 54 M.S.P.R. 686, 691 (1992)
      (finding accommodation unreasonable by looking to the medical evidence and
      comparing it to the job requirements).
¶23         Here, the appellant’s position description shows that a significant number of
      her duties require her to use a computer to assist in the processing and
      adjudication of immigration applications and petitions and to perform file
      analysis and report preparation. IAF, Tab 6 at 114-15. Because the appellant
      cannot sit or stand for more than 15 minutes at a time and cannot use a mouse
      because of pain and swelling in her right wrist, she cannot perform her computer
      duties for a full 8-hour workday even if she is allowed to alternate between sitting
      and standing. Id.; see IAF, Tab 8 at 3. The appellant’s disability is compounded
      by the fact that her prescribed medication, Lyrica, makes her drowsy and,
      according to the appellant, “non-functioning” the day after she takes it.      IAF,
      Tab 6 at 114-15; see IAF, Tab 8 at 5. We agree with the administrative judge’s
      finding that this side effect of the appellant’s medication would interfere to an
      important degree with her assigned duties, which require a clear mind. ID at 7;
      see IAF, Tab 6 at 114-15.     Although the agency offered to accommodate the
      appellant with lighter duties, we fail to see, and OPM has not explained, how
      lighter duties would reasonably accommodate the appellant’s disability while still
      allowing her to continue to perform the duties of her official position, most of
      which require using a computer and having mental clarity. IAF, Tab 6 at 114-15;
      see Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed. Cir.
      2001) (explaining that a light-duty assignment does not constitute an
      “accommodation” precluding eligibility for disability retirement under FERS if
      the assignment does not allow the employee to perform the duties of her official
      position).   Furthermore, as the administrative judge correctly noted, the
                                                                                     16

      appellant’s attendance has been deficient and is unlikely to improve with any of
      the agency’s proffered reasonable accommodations.       ID at 7.   Given that the
      appellant spends most of her day lying down and she can barely leave her house
      or perform household chores due to her pain and fatigue, we find no basis to
      disturb the administrative judge’s conclusion that her attendance will not improve
      even if some sort of workplace accommodation were to be made.
¶24        Lastly, OPM argues that the administrative judge erred because he “failed
      to consider” the agency’s certification that “[r]eassignment is not necessary
      because [the] employee’s performance is fully successful and there are no
      medical restrictions which keep the employee from performing critical duties or
      attending work altogether.”      PFR File, Tab 1 at 7.      As noted above, an
      administrative judge’s failure to mention all of the evidence of record, including
      what the agency certified as to a possible reassignment, does not mean that he did
      not consider it in reaching his decision. Diggs, 114 M.S.P.R. 464, ¶ 8. In any
      event, we have considered OPM’s argument regarding the agency’s certification
      that reassignment was not necessary and find that it provides no basis to disturb
      the initial decision. IAF, Tab 6 at 88. As discussed above, the appellant has
      shown by preponderant evidence that she is disabled for her position and that she
      cannot be reasonably accommodated.       We find that the agency’s conclusory
      statement that reassignment is not necessary and that the appellant does not have
      any medical restrictions that would prevent her from performing critical duties of
      her position or from attending work altogether is not persuasive and does not
      outweigh the other record evidence discussed above. See Francois v. Office of
      Personnel Management, 64 M.S.P.R. 191, 195 (1994) (declining to afford weight
      to the agency’s certification that reassignment was not necessary where “OPM
      has not proffered any explanation for why it credited the administrative officer’s
      conclusory statement and checking off a box on a preprinted form” over more
      probative, detailed evidence).
                                                                                        17

                                            ORDER
¶25         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.
¶26         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).
¶27         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).
¶28         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)).

                        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 (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
      regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
      you believe you meet these requirements, you must file a motion for attorney fees
      WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                           You
                                                                                   18

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 U.S.
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 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, 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
                                                                               19

Circuit.   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.
                                                     DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                 CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
