                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2008-3068

                                STEVE M. KESSLER,

                                                            Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Steve M. Kessler, of Wynnewood, Pennsylvania, pro se.

       Anuj Vohra, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and
Kirk T. Manhardt, Assistant Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                        2008-3068


                                  STEVE M. KESSLER,

                                                              Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                              Respondent.

              Petition for review of the Merit Systems Protection Board in
              PH844E070230-I-1.
                            ____________________________

                             DECIDED: December 5, 2008
                           ____________________________


Before LOURIE, RADER, and LINN, Circuit Judges.

PER CURIAM.
                                        DECISION

       Steven M. Kessler appeals from the decision of the Merit Systems Protection

Board affirming the Office of Personnel Management’s denial of Kessler’s application for

Federal Employees’ Retirement System (“FERS”) disability retirement annuity benefits.

Kessler v. Office of Pers. Mgmt., PH-844E-07-0230-I-1 (M.S.P.B. May 24, 2007).

Because Kessler has not demonstrated that the Board abused its discretion or

otherwise committed legal error in its decision, we affirm.
                                     BACKGROUND

        Kessler was a staff psychiatrist with the Department of Veterans Affairs (“VA”) in

Philadelphia, PA. His supervisors at the VA became aware that Kessler was being

treated for depression and provided accommodation by reducing his work load and

schedule. Despite this accommodation, Kessler’s supervisor noted deficiencies in his

work and habitual tardiness beginning in November 2000. On November 19, 2002,

Kessler was placed on a ninety-day performance improvement plan (“PIP”).                In

subsequent years, Kessler was twice placed on similar PIPs. On April 22, 2004, before

completion of the third PIP, Kessler tested positive for cocaine during a VA-

administered drug test. The VA removed him for illegal drug use effective December 4,

2004.

        A grievance examiner concluded that, as of May 2, 2005, Kessler was not an

active cocaine user and recommended that Kessler be reinstated to his former position.

The VA did not take the advice of the grievance examiner and upheld Kessler’s

removal.

        On December 3, 2005, Kessler filed for disability retirement, claiming that he

suffered from a wide range of diseases and conditions including severe depression,

attention deficit disorder (“ADD”), substance abuse disorder, obsessive compulsive

disorder (“OCD”), and sleep disorders. OPM denied that application by letter dated July

26, 2006. After Kessler’s timely request for reconsideration, OPM again denied his

request. Kessler timely appealed OPM’s reconsideration decision to the Board.

        On May 24, 2007, the administrative judge (“AJ”) issued an initial decision

affirming OPM’s reconsideration decision.        In arriving at his conclusion, the AJ



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                                        -2-
evaluated the medical records and opinions of three doctors who had treated Kessler,

as well as the testimony of Kessler’s then current psychiatrist, Dr. Richard Limoges.

Limoges testified that Kessler was “unable to perform useful and efficient service as a

psychiatrist” because Kessler’s ADD and OCD precluded him from ever competently

handling matters necessary to his position. However, the AJ accorded little credence to

Dr. Limoges’s testimony because Dr. Limoges never explained how Kessler could both

be unable to perform the duties required of him and receive numerous satisfactory

reviews of his work. The AJ found Dr. Limoges’s testimony to be contrary to the weight

of the evidence because it ignored the “link between appellant’s active drug use and the

beginning of his significant performance deficiencies.” Kessler v. Office of Pers. Mgmt.,

at 8. Aside from the discounted testimony of Dr. Limoges, the AJ found no evidence,

testimonial or otherwise, demonstrating that Kessler was unable to work at the VA.

       The AJ found that Kessler suffered from all of the medical conditions identified in

his initial request for disability. However, the AJ found that Kessler had failed to explain

how those conditions were disabling inasmuch as they affected his ability to do his job.

The AJ supported his conclusion by noting that Kessler’s two major depressive

episodes occurred years before Kessler applied for disability retirement. Furthermore,

the evidence demonstrated that while Kessler suffered from dysthymia, sleep disorders,

reflux disorder, irritable bowel syndrome, and hypertension, there was no evidence

(other than the discredited testimony of Dr. Limoges) demonstrating that these disorders

rendered Kessler unable to perform his duties as staff psychiatrist. Kessler’s cocaine

use, the AJ reasoned, was the “primary contributor to his performance deficiencies.”

Kessler v. Office of Pers. Mgmt., at 11.



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                                           -3-
      After Kessler appealed the AJ’s decision, the Board denied the petition for review

and the initial decision became final. Kessler v. Office Pers. Mgmt., PH-844E-07-0230-

I-1 (M.S.P.B. September 20, 2007). Kessler timely appealed to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

      The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2008); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).              We have limited review over factual

determinations of the Board, including whether Kessler was disabled within the meaning

of the FERS statute. Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 524 (Fed. Cir.

1995). Our review of disability claims is limited to determining whether there has been a

“substantial departure from important procedural rights, a misconstruction of the

governing legislation, or some like error going to the heart of the administrative

question.” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985).

      Kessler makes three main arguments on appeal. First, he argues that the AJ

erred by not applying the Mullins-Howard exception, which permits the Board to “link the

medical evidence to the job duties and requirements” when the medical evidence itself

fails to do so. Bynum v. Office of Pers. Mgmt, 89 M.S.P.R. 1 (2001). Second, he

argues that the AJ erred by failing to find a nexus between Kessler’s medical conditions

and his ability to perform his duties. To properly make such a demonstration, Kessler



2008-3068
                                        -4-
argues, the AJ is required to make finely-tuned correlations between Kessler’s medical

conditions and all of the essential elements of his position. Kessler claims that the AJ

failed to even identify the essential elements of his position. Third, Kessler argues that

substance abuse is not a per se disqualifying condition and that his cocaine addiction

should, in fact, be evidence of inability to perform his duties.

       In response, the government argues that the Board properly considered the

evidence before it. The government claims that the burden of proof of nexus between

medical disability and performance of job duties falls on the applicant, not on OPM.

Further, the government claims that Kessler mischaracterizes the findings of the Board,

and that the Board never found that substance abuse cannot serve as a disabling

condition.   Lastly, the government argues that the Mullins-Howard exception is

inapplicable in this case.

       First and foremost, Kessler has not shown that in this case there has been a

substantial departure from important procedural rights, or an error that goes to the heart

of the administrative process. Even so, on the merits of Kessler’s arguments, we agree

with the government that the Board did not commit legal error in its decision. As a

preliminary matter, we find that the Mullins-Howard exception is inapplicable in this

case. The exception grants the Board authority to find a nexus between an applicant’s

medical condition and the ability to perform job duties in cases “that unambiguously and

without contradiction indicate[] that appellant cannot perform the duties or meet the

requirements of the position.”     Bynum, 89 M.S.P.R. at 7.        In this case, there was

significant evidence that contradicted Kessler’s claim that his medical condition

prevented him from performing his duties. The AJ noted that prior to his testing positive



2008-3068
                                          -5-
for cocaine, Kessler completed satisfactory performance reviews and two performance

improvement plans. Furthermore, there was a lack of agreement between Kessler’s

doctors as to whether his conditions rendered him incapable of performing his work-

related duties.   The ambiguous and contradictory nature of the nexus evidence

therefore removes the Mullins-Howard exception from applicability in this case.

       Next, we examine Kessler’s claim that the AJ erred by failing to perform a

complete review of the essential elements of his job and then correlating those

elements to the specific symptoms of his medical condition. The Board does not bear

the burden of establishing the elements of Kessler’s nexus claim; Kessler does. See

Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 522 (Fed. Cir. 1995). Furthermore, it is

apparent from the Board’s opinion that the AJ performed a thorough review of the

evidence. She examined Kessler’s extensive medical history and the opinions of the

four physicians, as well as the performance reviews and other evidence of Kessler’s

performance at work.      An administrative judge is not required to enumerate the

“essential elements” of an applicant’s position and then correlate the psychiatric

conditions to each of those elements, as Kessler would urge us to hold.           The AJ

performed a complete review of the evidence, and her factual findings do not represent

an error that goes to the heart of the administrative process.

       Lastly, we consider Kessler’s claim that the AJ misapplied the law regarding the

effect of Kessler’s substance abuse on his disability benefits. Kessler cites Winslett v.

Office of Pers. Mgmt., 30 M.S.P.R. 293, 296-97 (1986), for the proposition that an

applicant for disability benefits claiming drug addiction as a disabling condition must

show that he is unable to maintain control of the addiction after receiving treatment.



2008-3068
                                        -6-
Contrary to the government’s repeated contention, it is clear that the AJ found that

Kessler’s drug use was the primary cause of his deteriorating work performance and

that the AJ did indeed find a connection between Kessler’s drug use and his work

performance. See Kessler at 8. (“The evidence establishes a link between applicant’s

active drug use and the beginning of his significant performance deficiencies.”). Despite

the government’s erroneous reading of the AJ’s decision, it is unclear how the holding in

Winslett benefits Kessler.        Aside from not being binding precedent on this court,

Winslett does not advance Kessler’s appeal because it held that an applicant had failed

to demonstrate that he was physically disabled, partly resulting from his inability to

demonstrate that he could not maintain sobriety for at least a year.        Winslett, 30

M.S.P.R. at 296-97. Kessler’s case is not one in which the length of the disabling

condition has not been established, but rather whether the condition is medically

disabling in the first place.

       While there is evidence in the record to show that Kessler received treatment,

ultimately unsuccessfully, for his drug abuse, the AJ did not find that Kessler’s drug

abuse was a medical condition that would allow Kessler to receive disability benefits.

Indeed, of the numerous physicians who evaluated Kessler and who knew of his drug

problems, none classified his drug problems as a disabling medical condition. Many of

Kessler’s physicians encouraged him to return to work, indicating that they did not find

his condition disabling.        The testimony of the doctor who believed Kessler to be

disabled, Dr. Limoges, was discredited by the AJ precisely because it “trivialized”

Kessler’s drug problems. Clearly, Limoges, and all the other physicians in this case, did

not consider Kessler’s drug problems to be “disabling medical conditions.” See 5 C.F.R.



2008-3068
                                          -7-
§ 844.102 (defining disabling as “unable or inability because of disease of injury to

render useful and efficient service in employee’s current position”). While drug use

obviously contributed to Kessler’s problems at work, it is clear that such use did not rise

to the level of a “disabling medical condition” when four medical professionals have

declined to characterize it as such.

       Kessler has not demonstrated that the Board has substantially departed from

important procedural rights, misconstrued a governing regulation, or otherwise

committed an error that goes to the heart of the administrative process. Moreover,

Kessler has not shown that the Board abused its discretion or otherwise committed

legal error. Accordingly, we affirm the Board’s decision.

                                         COSTS

       No costs.




2008-3068
                                        -8-
