N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

SYLVIA R. SCRIVENS,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

______________________

2016

- 1910

______________________

Petition for review of the Merit Systems Protection
Board in No. AT

- 844E

- 15

- 0811 -I- 1.

______________________

Decided: October 18, 2016

______________________

S YLVIA R. S CRIVENS , Casselberry, FL

, pro se

.

M OLLIE L ENORE F INNAN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represen ted by B ENJAMIN C. M IZER

, R OBERT E. K IRSCHMAN

, J R

., C LAUDIA B URKE

.

______________________

Before R EYNA

, T ARANTO

, and H UGHES

, Circuit Judges.SCRIVENS v. OPM 2

P ER C URIAM

. Sy lvia R. Scrivens appeals pro se a final order of the Merit Systems Protection Board (“Board”) affirming the Office of Personnel Management’s (“OPM” ) denial of a
disabi lity retirement annuity under the Federal Emplo yees’ Retirement System (“FERS”) . We conclude that substantial evidence supports the Board’s determination
that Ms. Scrivens failed to establish that her condition prevented her from performing useful and eff icient service in her position . We thus affirm the Board’s final order denying Ms. Scrivens ’ claim for a disability retirement annuity.

B ACKGROUND

Ms. Scrivens worked as a letter carrier for the United
States Postal Service

. Following a workplace inciden t in 2004, she received workers’ compensation benefits until returning to work in 2006. Ms. Scrivens testified that despite having“ a difficult time ” returning to work, she worked until August 2013. A6, A25.

On August 21, 2013, Ms. Scrivens attended a meeting
to discuss deficiencies in her workplace performance.
Ms. Scrivens stated that during that meeting, she had an “episode” during which “she felt angry, confused[,] and mad and talked loudly in front of her supervisors.” A 6,
A25

. The next month

, Dr. Benjamin Isom, a licensed psychologist, wrote that Ms. Scrivens was “unable to perform her normal work duties and is being placed her [ sic ] on 30

- days medi cal leave of absence ” but gave no further explanation. A16. Dr. Isom subsequently exten ded Ms

. Scrivens’ leave through January 2014. In a Jan uary 9, 2014 letter, Dr. Isom opined that Ms. Scrivens remained “unable to perform one or more functions of her occupation” and that she should “explore the possibility of Disability Retirement.” A21 –A 23

.SCRIVENS v. OPM 3

Ms. Scrivens applied for disability retirement in May

2014. On the required Statement of Disability , she listed
the August 21, 2013 meeting as the onset date of her two disability conditions: p ost

- traumatic stress d isorder (“PTSD”) and anxiet y . Ms. Scrivens explained that her
conditions caused increased confusion, poo r focus, and intense anxiety. She further explained that attempting to concentrate while driving “ is a very vital part ” of her job,
her safety

, and the safety of others. A29

. M s. Scrivens
also submitted a Supervisor’s Statement from Veronica
Jorden dated July 21, 2014 that explained there were “[n]o critical elements in which [Ms. Scrivens did] not perform successfully” other than an “unacceptable” a ttendance record. A37

– 38. A ccording to Ms. Jorden,
Ms. Scrivens “had been on FMLA and/or AWOL” since the August 21, 2013 meeting. A38

. In June 2014, a psychiatrist, Dr. Ramon Martinez, r eleased Ms. Scrivens to work par t time with no r estrictions. In July 2014 , she returned to work full time,
where she remained until October 2014. Ms. Scrivens has
not worked since then. 1

On December 30, 2014, OPM denied Ms. Scrivens’ a pplication for disability retirement because her submitted
medical records failed to establish that she was disabled from performing useful and efficient service in her pos ition. After Ms. Scrivens moved for reconsideration, OPM sustained its denial and explained that she had not presented any evidence that she exhausted the possibility
of a reasonable accommodation for her condition.

Ms. Scrivens appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

1 The record is unclear regarding the circumstances surrounding Ms. Scrivens’ October 2014 departure from
the Postal Service.SCRIVENS v. OPM 4

D ISCUSSION

“[O]ur scope of review of FERS disability retire ment determinations is substantially truncated.” Anthony

v. Office of Pers. Mgmt. , 58 F.3d 620, 624 (Fed. Cir. 1995). We may hold unlawful and set aside an agency action found to be “(1) arbitrary, capricious, an abuse of discr etion, or otherwise no t 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). W ith one small exception, 5 U.S.C. § 8461(d) precludes us from reviewing the factual underpinnings of physical or mental disability determin ations. Anthony , 58 F.3d at 626 ; 5 U.S.C. § 8461(e)(2) (excepting findings of mental disability “made pursuant to an application by an agency for purposes of disability
retirement under section 8451 ”). Because that exception does not apply here, our review is limited to whether
there ha s 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 determination.” Lindahl v. Office of Pers. Mgmt. , 470 U.S. 768, 791 (1985) (quota tion marks and citation omitted).

Ms. Scrivens argues that the Board failed to consider her medical disability in making its decision. Pet’r’s Br.

at 1. Specifically, Ms. Scrivens faults the Board for not considering the information provided in a mental impai rment questionnaire. Id. at 3.

The Board’s determinations of “disability and depen dency” are “final and conclusive and are not subject to review.” 5 U.S.C. § 8461(d). Thus, the underlying merits
of whether Ms. Scrivens qualified for dis ability based on
her mental condition are beyond our pur view, and w e do
not address them here.

We may, however, review the Board’s decision for pr ocedural error. D espite Ms. Scrivens’ allegation that theSCRIVENS v. OPM 5

Board failed to consider her medical questionnaire, the Board specifically found “nothing in either Dr. Martinez’s
letters or questionnaire that specifically relates [Ms. Scrivens’ ] condition to her particular job duties and explains why her condition prev ents her from performing
those duties in a useful and efficient manner.” A8 –A 9 (emphasis added). Thus, while Ms. Scrivens may disagree
with the Board’s conclusion

, the record indicates the Board properly considered all relevant evidence before it.

The Bo ard’s final order is suppor ted by substantial evidence, not arbitrary or capricious, and in accordance
with law. We affirm the Board’s final order.

AFFIRMED

C OSTS

No costs.