## United States Court of Appeals for the Federal Circuit

2006-3260

PHYLLIS M. VANIEKEN-RYALS, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.
John S. Grady , Grady & Hampton LLC, of Dover, De lware, argued for petitioner. Michael S. Dufault , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler , Acting Attorney General, Jeanne E. Davidson , Director, and Bryant G. Snee , Assistant Director. Of counsel was Tara K. Hogan , Trial Attorney. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

2006-3260

PHYLLIS M. VANIEKEN-RYALS, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________________ DECIDED: November 26, 2007

__________________________

Before MICHEL, Chief Judge , LOURIE and MOORE, Circuit Judges

. MICHEL, Chief Judge

. Phyllis M. Vanieken-Ryals appeals from a final decision of the Merit Systems Protection Board ("MSPB") sustaining the denial of her application for disability retirement benefits by the Office of Personnel Management ("OPM"). Vanieken-Ryals v. Office of Pers. Mgmt. , No. PH-831E-05-0450-I-1 (M.S.P.B. May 15, 2006). Because OPM applied an erroneous legal standard in it s assessment of evidence offered to support Vanieken-Ryals' application, and the MSPB repeated that error, we vacate and remand. I. BACKGROUND Vanieken-Ryals has been an employee of t he Veterans Administration ("VA") for nearly thirty years. In the several year s prior to February 2004, she experiencedincreasing discomfort and difficulties at her workplace and particularly with her immediate supervisor, Barry Emerson. On February 23, 2004, Em erson instructed her to switch offices to one near his. This prompted her to immediately apply for voluntary early retirement. Emerson informed her th e next day, February 24, 2004, that he was recommending her application be denied. She did not return to work the next day, and she has been absent from work ever since. The VA formally denied her early retirement application on March 3, 2004. On June 25, 2004, she filed the applic ation for disability retirement at issue in this appeal. OPM de nied that application on January 12, 2005. After permitting Vanieken-Ryals to submit a dditional evidence, OPM reconsidered and sustained its decision on May 9, 2005. Vanieken-Ryals appealed to the MSPB, and the administrative judge ("AJ") sustained OPM's reconsideration decision. Vanieken-Ryals v. Office of Pers. Mgmt. , No. PH-831E-05-0450-I-1 (M.S.P .B. Nov. 14, 2005) ("AJ Decision"). The MSPB denied Vanieken-Rya ls' petition for rehearing on May 15, 2006, thereby making the AJ's decisi on its final decision, which Vanieken-Ryals then timely appealed to this court. Vanieken-Ryals claims complete disabilit y due to several alleged psychological disorders, including major depression an d anxiety disorder. The evidence she submitted to OPM to support her claim consis ted of her own statements in addition to several letters, medical reports, and rela ted documentation from her treating psychologist, Dr. Nichols, and treating psychia trist, Dr. Rummler. Before the MSPB, Vanieken-Ryals additionally subm itted testimony from herself and her husband, as well as testimony from Dr. Nichols. OPM of fered no medical evid ence countering Dr. Nichols' and Dr. Rummler' s documents or testimony.

2006-3260 2In her statements to OPM, Vanieken-Ryals a lleged that the stress es of her job in the months leading up to January 2004 result ed in, among other things, severe anxiety and panic attacks, vomiting, and nausea. Pet. A pp. at 167-68. She also indicated that, by January 2004, she "could no l onger manage to drive [her]self to work," and that she would experience "sheer panic when forced to leave the house." Id. She further indicated that, after her meeting with her superior on February 24, 2004, she "suffered a total mental meltdown." Id. at 169. She also descr ibed the symptoms she has experienced since she stopped attending her job, such as "chest pains, heart palpitations," nausea, irritability, inability to drive, "deep depressi ve moods," difficulty with "simple basic hygiene" and "routine hous ehold chores" like laundry or cooking, and general and severe fear and anxiety in dealings with people and/or places at all connected or related to the VA. Id. at 169-71. Her testimony before the M SPB was consistent with her statements to OPM; she testified that the act of being driven to work by her husband wo uld cause nausea and vomiting, that leaving her house would tri gger panic attacks, that she suffered from depression, and that she had been prescribed mu ltiple medications for her mental conditions. Id. at 54, 59-61, 65, 73. Her husband, James Ryals, also testified before the MSPB, corroborati ng his wife's testimony on her symptoms. Id. at 76-77, 79-81. Dr. Nichols submitted a number of letters and medical reports dated from May 12, 2004, to February 8, 2005. She also submitted progre ss notes dated from as early as March 15, 2004. In thes e documents, she consistent ly diagnosed Vanieken-Ryals with generalized anxiety disorder, panic at tack disorder without agoraphobia, and major

2006-3260 3depression, all "Axis I" psychological disorders. 1 Id. at 149-50, 152-58. She described in detail the symptoms report ed by Vanieken-Ryals and her husband as well as those she herself observed during treatment. Id. at 149, 152, 154. She indicated her opinion that Vanieken-Ryals "is a reliabl e reporter of her situation." Id. at 152. She described particular aspects of Vanieken-Ryals' condi tion that reflected specifically on her capability to accomplish the tasks of her posit ion; for example, Dr. Nichols wrote on February 8, 2005, that Vanieken -Ryals "is unable to drive or be driven north or to set foot in the VA building" and t hat merely receiving corres pondence from t he VA rendered her "extremely anxious and depressed and unable to leave the couch for days." Id. at 149. Dr. Nichols also opined on Vanieken-R yals' prognosis, reporting that aside from small improvements in personal hygiene and like tasks, "her date of recovery, if she has to return to work, is far in the future, if ever." Id. at 156. In mid-2004, Dr. Nichols did indicate, without specifying, t hat "[p]rognosis is good" an d that Vanieken-Ryals "is making progress in therapy," but emphasized that she remained unfit to return to work. Id. at 157-58. And Dr. Nichols' final report in February 2005 indicated that VaniekenRyals "most likely will be unable to return to work at all" and that Dr. Nichols "does not believe an accommodation is feasible." Id. at 149. Dr. Nichols also gave oral testimony before the MSPB. She testified that she "did see that [Vanieken-Ryals] had anxiety and d epression," and that s he directly observed signs of mental illness such as having a "flat" affect and being "very fidgety." Id. at 30, 32, 36. She described particular episodes and manifestations of Va nieken-Ryals' panic

1 Dr. Nichols applied the current editi on of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"), a widely-accepted tool for psychological diagnosis published by t he American Psychiatric Associati on. "Axis I" disorders are among the most severe of the diso rders for which DSM-IV is used.

2006-3260 4attacks and depression, and discussed the lim ited progress achieved by VaniekenRyals' treatment, such as an improved ability to maintain personal hygiene. Id. at 30, 33-36. Dr. Nichols testified seve ral times that she at no ti me felt that Vanieken-Ryals was fit for work, and that Vanieken-Ryals "will not ever be able to return to the VA" and likely "will never be able to return to [any] work, full time." Id. at 30, 34, 38. She also testified that the standard diagno stic tool in the mental heal th field is DSM-IV, and that she had used DSM-IV to diagnose Vanieken-Ryals. Id. at 36. Dr. Rummler, whom Dr. Nichols indica ted was prescribing Xanax and other psychiatric medication, id. at 152-54, provided a brief letter dated March 25, 2005, indicating that he had been treating Vaniek en-Ryals since April 2004 and that he had diagnosed her with major depre ssion and anxiety disorder. Id. at 151. He further indicated his opinion that "[d]ue to the intensity of symptoms attributable to work related stress, it can also be stat ed with reasonable medical certai nty that Mrs. Vanieken-Ryals will be unable to return to her previous work at any time in the future." Id. He also submitted notes of his treatment of Vaniek en-Ryals from April 2004 through June 2005. Id. at 135-42. Both OPM and the MSPB gave no weight at all to Vanieken-Ryals' medical evidence and then found that s he had failed to prove her disability. The MSPB also held that she had not "defin itively exhausted" the possibility that the agency could accommodate her alleged disability. AJ Decision at 16. This holding was largely based on the MSPB's rejection of he r medical evidence and its view that she had failed to

2006-3260 5prove any disability beyond an inability to work with her particular supervisor. 2 The record shows that Vanieken-Ryals was offe red "temporary duty away from work area and supervisor," which she turned down due to her medical condition. Id. at 9-10. However, the record also indicates that the VA determined: "Reassignment is not possible. There are no vacant positions at this agency, at the same grade or pay level and tenure within the same commuting area, for which the employee meets minimum qualification standards." Id. at 10. II. DISCUSSION

A. Jurisdiction As a threshold issue, we first address w hether this court has jurisdiction to hear Vanieken-Ryals' appeal due to 5 U.S.C. § 8347. While we ha ve exclusive jurisdiction over appeals from a final decision of the MSPB under 28 U.S.C. § 1295(a)(9), the scope of review available regarding OPM disability determinations is restricted by § 8347 and by the Supreme Court's decision in Lindahl v. Office of Pers. Mgmt. , 470 U.S. 768 (1985). Under that stat ute as interpreted in Lindahl , factual determinations on "questions of disability and de pendency" are unreviewable by th is or any other court. See 5 U.S.C. § 8347; Lindahl , 470 U.S. at 779-80; Anthony v. Office of Pers. Mgmt. , 58 F.3d 620, 625-26 (Fed. Cir. 1995). The Court made clear, however, that issues of law regarding decisions on disability applications are reviewable: "[Judicial] revi ew is available to determine whether there has been a substantial departure from impor tant procedural rights, a

2 The AJ, however, noted in his decision that he was "aware that the continuing position of both [Vanieken-Ryals] and Dr. Nichols is t hat [Vanieken-Ryals] can not work again at all" and that were Dr. Nichols' conclusions correct, "a reassignment could prove fruitless." AJ Decision at 16.

2006-3260 6misconstruction of the governing l egislation, or some like error going to the heart of the administrative determination." Lindahl , 470 U.S. at 791 (quoting Scroggins v. United States , 397 F.2d 295, 297 (Ct. Cl. 1968)) (internal qu otations omitted). Thus we may only address the critical legal errors, if any, committed by the MSPB in reviewing OPM's decision. Vanieken-Ryals contends that both the MSPB and OPM committed an error of law by entirely rejecting all of her medi cal evidence simply due to the absence of socalled "objective" medical evidence, arguing t hat such a requirement is unlawful and not supported by any statute, r egulation, or precedent. The government argues that no such requirement was imposed and that t he MSPB (and OPM) simply found the medical evidence insufficient to establish disability as a factual matter. We conclude, however, that the MSPB's decision was indeed predicated on itsview that "objective" medical evidence is required to prove disability and that VaniekenRyals had failed to meet this requirement, affirming and expressly approving of OPM's holding to this effect. This is evident upon close examination of all three written decisions in this case. In OPM's init ial decision of January 12, 2005, the agency criticized the evidence submi tted by Vanieken-Ryals because "[a]part from [VaniekenRyals'] subjective narrative, no other objective medical documentation was provided supporting a history that may hav e contributed to [her] sudden mental demise." App. to Resp. Br. at 31 (emphasis added). OPM t hen elaborated, criticizing the lack of "documentation such as emer gency room reports showing incidents of panic attack" and "relevant psychiatric studies or test results." Id. In its later May 9, 2005 reconsideration dec ision, OPM further expressed its view that the critical defect in Vanieken-Ryals' evidence was the lack of so-called objective

2006-3260 7medical documentation. OPM i ndicated it was giving no wei ght to Dr. Nichols' several reports because "she provided no details concerning any ment al status evaluation," and "she does not provide copies of any formal cogni tive testing." Pet. App. at 145. OPM later repeated that the case file "contains no evidence of any formal cognitive or neuropsychological testing," and also cited the lack of "any comprehensive physical examinations" and "any current comprehens ive mental status evaluations." Id. at 146. The MSPB in turn enforced OPM's "objecti ve" medical evidence requirement. In his opinion, the AJ pointed to OPM's findi ng that Vanieken-Ryals had provided "little objective medical evidence . . . to demonstr ate that [she] is disabled." AJ Decision at 13 (emphasis added). He further noted that "OPM also points out that the bulk of the evidence presented by [Vanieken-Ryals] is Dr. Nichol's [sic] reports of what [VaniekenRyals] told her." Id. This latter point was relied on by the AJ in his own analysis, and he remarked that "the evidence presented by Dr. Nichols is only as good as the information given to her by [Vanieken-Ryals]." Id. Thus the AJ also co ncluded that Dr. Nichols' reports were necessarily immaterial since t hey were "subjective" in that they were primarily based on Dr. Nichols' assessment of Vanieken-Ryals' own account of her symptoms and experiences. The AJ made this apparent when he declared that "[t]he only evidence which supports [Vanieken-Ryals'] claim of disability is her protracted absence form [sic] work," and emphasized that "the necessity of the absences is based

on purely subjective medical evidence , which are not supported by an [sic] objective medical evidence ." Id. at 17 (emphases added). Clearl y, the AJ totally discounted any probative value that Vanieken-Ryals' medica l evidence might have to support her claim of disability since the only evidence he credited was herattendance record (which he

2006-3260 8then also rejected for being ba sed on "purely subjective medical evidence"). His treatment of the medical evi dence was thus tantamount to exclusion; he "considered" Dr. Nichols' and Dr. Rummler's evidence but onl y so far as deciding to disregard it as not at all probative as to her disability. 3 The Supreme Court in Lindahl , by expressly rejecting that the MSPB and OPM are not subject to any judicial review on any issue, indica ted that the courts have a limited but important role to play. Both to guard against the substantial errors of law and resulting miscarriage of justice described in Scroggins , and to properly respect our jurisdictional limitations on truly factual determinations, we must be discerning and cannot be satisfied by opinions that in voke the trappings of factual analysis— e.g. , by vaguely describing broad swaths of evidence as "insufficient" or as failing to carry the claimant's burden, or simply asserting that all record evidence was considered, all of which the AJ and OPM did here—but, when r ead closely and carefully, reveal that absolutely no weight was given to certain ev idence solely because it can generally be classified as "subjective" and not because of anyspecific identifiable defect. Giving little weight to specific evidence because of its individual failings, such as the lack of qualifications of the aut hor of a particular medical report, is a factual analysis over which we have no jurisdiction to review. Disqualification of evidence because of its type is an

3 Thus the AJ's conclusion that Vanieken-Ryals had failed to "adduce sufficient probative medical evidence that the medical conditi ons from which she suffers disables her from performing the duties of he r position" does not truly evidence a factual analysis since it is predicated on the view that none of Vanieken-Ryals' medical evidence warranted any probative weight. See AJ Decision at 17. With this evidence essentially excluded, she of course had not adduced sufficient, or indeed any, probative medical evidence. OPM's conclusion, that the record "contains insufficient medical documentation regarding t he level of any medical impairm ent in context to [VaniekenRyals'] ability to perform the duties and respons ibilities of [her] j ob," is based on the same premise and is similarly unconvincing. See Pet. App. at 147.

2006-3260 9imposition of a legal standard be cause it inherently imposes a categorical requirement. When the use of such a standard is dispositive of disability retirement claims, they go to the heart of the administrative determinat ion, and we are charged with resolving whether the imposed standard and its inherent evidentiary requirement are lawful. Therefore, we hold th at our jurisdiction is establishe d as to the issue of whether the imposition of an objective medical evid ence requirement by the MSPB (or OPM) in disability retirement cases is lawful or "a substantial departure from important procedural rights, a misconstruc tion of the governing legislation, or some like error going to the heart of the adm inistrative determination." 4 Scroggins , 397 F.2d at 297. We now turn to this issue of law, which we review de novo , keeping in mind that the MSPB decision sustaining OPM's actions may only be reversed if it is arbitrary or capricious, or if it is contrary to law. 5 See 5 U.S.C. § 7703(c). B. Objective Medical Evidence Requirement It is telling that no authority whatsoever is cited by th e MSPB or OPM, in any of the three written decisions in this case, for the proposit ion that objective medical evidence is required to prove disability. No statute or applicable r egulation of which we are aware imposes such a requirement. In fact, applicable law suggests the opposite rule. OPM's regulations define the type of "medical documentation" required to establish disability. Such evidence must come from "a licensed physician or other

4 We do not, however, review the MSPB's treatment of the non-medical evidence, such as her performance evaluations and the testimony of her supervisor. Both the MSPB and OPM seem to have cons idered and weighed th is evidence. But this does not bear on whether the MSPB orOPM effectively imposed an objective medical evidence requirement. 5 While we may also re verse an MSPB decision if it is unsupported by substantial evidence, our limited review of legal issues only in OPM disability cases does not implicate the subs tantial evidence standard.

2006-3260 10appropriate practitioner," it mu st "be justified according to established diagnostic criteria," and it must "not be inconsis tent with generally a ccepted professional standards." 5 C.F.R. § 339.104; see 5 C.F.R. § 831.1202 (requiring medical evidence submitted to support an application for disa bility retirement to conform to the requirements of 5 C.F.R. § 339.104). There is no hint of any objective/subjective distinction, and the regulati on clearly indicates that any evidence—"subjective" or otherwise—utilizing "established diagnostic criteria" and consist ent with "generally accepted professional standards" is eligible for consideration. Moreover, the MSPB has even precedentially ruled squarely against an objective evidence requirement. Chavez v. Office of Pers. Mgmt. , 6 M.S.P.R. 404, 418-23 (1981) ("[The AJ] erred in assuming that appellant's claim for disability retirement benefits could not be granted if it was not pr oven by objective medical evidence."). 6 While we are not bound by the MSPB's preceden t, we agree with and accept the Chavez holding on this issue. OPM must consider all of an applicant's competent medical evidence, and an applicant may prevail based on medical evidence that, as here, consists of a medical professional's conclusive diagnosis, ev en if based primarily on his/her analysis of the applicant's own descriptions of sym ptoms and other indicia of disability. See id. at 423 ("Objective medical evid ence, then, is but one of t he elements of proof to be considered, along with expert opinion evid ence and subjective evidence of pain and inability to work . . . .").

6 We note that the AJ cited and quoted from Chavez at the beginning of his opinion, and thus his later disr egard for one of its central holdi ngs is very puzzling. An AJ is, of course, bound by all precedents of the MSPB.

2006-3260 11For example, in Craig v. Office of Pers. Mgmt. , 92 M.S.P.R. 449, 454-55 (2002), the MSPB held that the applicant satisfied her burden of pr oving her disability solely with medical evidence from a psychiatric soci al worker along with her own testimony. The social worker, a licensed mental heal th specialist, diagnosed her patient with multiple mental disorders, including post-t raumatic stress disorderand panic disorder. Id. at 452. Much like in the in stant case, the social worker's reports were solely based on information she heard or observed durin g therapy sessions after the applicant had already left the job that had precipitated her conditions. See id. Also like Dr. Nichols, the social worker in Craig based her diagnosis on the guidelines in DSM-IV. Id. at 455. There is no mention of any "objective" tests in Craig ; rather, the medical evidence there deemed highly probative was very similar to the medical evidence petitioner submitted here. The MSPB's total disregard of this evi dence due to a lack of "objective" tests thus ignores its own precedents. In addition, subjective evidence— i.e. , testimony or writ ten statements—regarding symptoms that is submitted by the applicant "may be entitled to great weight on the matter of disability, especially where such evidence is uncontradicted in the record." Chavez , 6 M.S.P.R. at 418-422; see also Biscaha v. Office of Pers. Mgmt. , 51 M.S.P.R. 304, 309 (1991) ("An appellant's subjective evidence of pain must be considered seriously, where it is support ed by competent medi cal evidence."). It stands to reason that qualified medical opinions based on the sa me types of information must therefore also be afforded at least compar able, if not greater, probative weight. While the ultimate determination of whether the ev idence has satisfied the applic ant's burden of proof rests first with OPM and then with the MSPB, we hold that it is legal error for either agency to

2006-3260 12reject submitted medical evidence as enti tled to no probative we ight at all solely because it lacks so-called "objective" m easures such as laboratory tests. The problem with a requirement of "objective" tests is particularly pronounced when, as here, the alleged di sability arises from purely psychological, as opposed to physical, disorders. No la boratory tests or physical exam inations exist, or are even known to be possible, to diagnose some psychological disorders. See Chavez , 6 M.S.P.R. at 418. A nd the practice of psychologists often consists entirely of professional assessment of patient-r eported symptoms and experiences. Thus, requiring objective medical evidence would often discriminate against those civil servants who suffer from legitimate, disabling psychological disorders.Here, Dr. Nichols submitted several reports in which she diagnosed VaniekenRyals with severe psychiatric condition s, recounting the symptoms and experiences reported by Vanieken-Ryals that formed the bas is of her diagnosis. Inherent in these reports is her professional opinion that Vanieken-Ryals' a ccount of these symptoms is credible, and that the symptoms reported are se rious. Indeed, she stat ed explicitly that, in her professional opinion, Va nieken-Ryals was a "reliable reporter of her situation." Pet. App. at 152. And her professional opi nion was supplemented and supported by the opinion of a second medical professional, psychiatrist Dr . Rummler, who concurred with Dr. Nichols' diagnosis and went further to prescribe medi cations, evidence of which was submitted to OPM. In cases involving psycholog ical disability, such evidence is typically probative (though not necessa rily dispositive). See, e.g. , Craig , 92 M.S.P.R. at 454-55 (crediting similar medical opinion testimony from a psychiatric social worker).

2006-3260 13While OPM and the MSPB may give only limited weight to seemingly strong medical evidence such as this, it typically does so only in the face of factors such as doubts about professional com petence, contrary medical evidence, failure of the professional to consider rele vant factors, lack of particula rity in relating diagnosis to nature and extent of disability, etc. 7 See Thomas v. Office of Pers. Mgmt. , 54 M.S.P.R. 686, 689-90 (1992) (comparing and weighing c onflicting medical opi nions on the basis of qualifications and competence); Bridges v. Office of Pers. Mgmt. , 21 M.S.P.R. 716, 719 (1984) (holding that the lack of contrary medical evidence lends weight to applicant's evidence); see also Chavez , 6 M.S.P.R. at 423 (noting that "the qualifications of the expert" and "the extent and durat ion of the expert's familiarity with or treatment of the applicant's conditi on," among others, are important factors). But here, OPM did not expre ss any doubt as to the credent ials or veracity of Dr. Nichols or Dr. Rummler, and the only medical evidence as to whether Vanieken-Ryals suffered from disabling psyc hological disorders were thei r reports and documentation. 8

7 Our decision in Trevan v. Office of Pers. Mgmt. , 69 F.3d 520, 526-27 (Fed. Cir. 1995), is inapposite because in that case, we held that the MSPB and OPM did not err by relying on a lack of objective medica l evidence supporting a claim of disability when "OPM has produced [objective] medica l evidence [such as X-rays] that is inconsistent with subjective claims of disabili ty." There, the MSPB essentially held that the applicant's lack of supporting objective medical evidence rendered his subjective evidence less probative than the contrary objective evidence submitted by OPM. Such a comparison, when subjective evidence is deemed to be less probative than contrary objective evidence, is certainly factual in na ture, but that is not the situation here where the only medical evidence is the so-called "subj ective" evidence submitted by VaniekenRyals. And in Trevan , we acknowledged that "objective medical evidence is not the only factor to be assessed in determining disability." Id. (citing Chavez , 6 M.S.P.R. at 419, 422). 8 Vanieken-Ryals also submitted wri tten statements in wh ich she described her own symptoms and experiences such as, for example, her inability to maintain basic hygiene and panic attacks preventi ng her leaving her home. Pet. App. at 171. She also ultimately testified before t he AJ on appeal to the MSPB, as did her husband who gave

2006-3260 14OPM also did not make any findings that Dr . Nichols' or Dr. Rummler's reports did not utilize "established diagnostic criteria" or were "inconsistent with generally accepted professional standards." See 5 C.F.R. § 339.104. Nor were any such concerns raised by the MSPB in its review. And when, as here, the medica l evidence indicates physical or mental incapacity so severe as to clearly establish an inability to perform the tasks of any job—such as inability to leave home, drive, or accomplish even basic life tasks—the medical evidence need not enumerate what specific job tasks are rendered unfeasible by the disability. Mullins-Howard v. Offi ce of Pers. Mgmt. , 71 M.S.P.R. 619, 627 (1996) (holding that a psychiatrist's assessment that his patient "was unable to leave her home, see visitors, drive, and had great difficult y managing ordinary household tasks such as cooking and doing laundry" was sufficient to establish an incapacity to perform the duties of her job regardless of the spec ific tasks required). When weighing the probative value of medical evidence involv es such a comprehensive and fact-intensive process, flatly refusing to consider such medical evidence simply for being "purely subjective" is a critical legal error and, at least in a case like this, clearly prejudicial. Here, it is clear that both OPM and the MSPB committed this legal error. As already discussed, the decisions of both agencies included num erous statements evidencing a belief that Vanieken-Ryals' medical evidence should be afforded no

supporting testimony. Neither OPM nor the M SPB gave any indication that she or her husband was not a credible wi tness, and certainly no Hillen analysis was conducted. See Hillen v. Dep't of the Army , 35 M.S.P.R. 453, 458 (1987). Nevertheless, OPM and the MSPB dismissed Vanieken-Ry als' symptoms and psychological reactions to her job as "situational," thus not serious or endur ing enough to be disabling. While we have grave doubts about this characterization of herexperiences given that her testimony was seemingly considered credible, we need not and do not address here whether OPM committed an error of law "going to t he heart of the administrative determination" in its consideration of Vanieken-Ryals' own statements.

2006-3260 152006-3260 16 probative weight at all due to the lack of "objective" evidenc e such as "formal cognitive testing." See, e.g. , Pet. App. at 146. In addition, neither the MSPB nor OPM discussed the content of Dr. Nichols' or Dr. Rummler 's evidence in any meaningful way, which further demonstrates that it was not properly considered. OPM, for example, resorted to a laundry list of "objective" tests and doc uments that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain. See id. This is precisely the type of "error go ing to the heart of the administrative determination," if not a "substant ial departure from important procedural rights," that the Supreme Court charged this court to guard against. See Lindahl , 470 U.S. at 791. Therefore, we hold that OPM's and the MSPB's adherence to such a rule, unsupported in the law, was arbitr ary, capricious, and contraryto law; thus this case must be remanded for proper consideration of Vanieken-Ryals' medical and other evidence. Further, since the MSPB's finding that reassignment possibilities had not been "definitively exhausted" wa s based in large part on its rejection of this evidence, that issue must also be revisited on remand. CONCLUSION For the foregoing reasons, the decision of the MSPB is vacated, and the case is remanded for further proceedings . On remand, the MSPB is instructed to properly consider Vanieken-Ryals' already-submitted medical and other evidence consistent with this opinion and otherapplicable precedent. VACATED and REMANDED

.