UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 33

Docket No. CH-844E-14-0283-I-1

Rachel K. Angel,

Appellant,

v.

Office of Personnel Management,

Agency.

April 15, 2015

Rachel K. Angel, Oregon, Wisconsin, pro se.

Thomas Styer, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The Office of Personnel Management (OPM) has filed a petition for review 

of the initial decision, which reversed OPM’s reconsideration decision denying 

the appellant’s application for disability retirement benefits. For the reasons set 

forth below, we DENY the petition for review and AFFIRM the initial decision.

BACKGROUND

¶2 The appellant formerly was employed by the Department of Agriculture 

(USDA) as a GS-08 Biological Science Laboratory Technician. Initial Appeal 

File (IAF), Tab 5 at 53. She was removed from her position on May 21, 2011. 

Id. at 66. About a month earlier, the appellant filed an application for disability 
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retirement benefits under the Federal Employees’ Retirement System (FERS). Id.

at 36-44. On November 4, 2011, OPM issued a decision denying the appellant’s 

application for disability retirement benefits. Id. at 29-33. The appellant filed a 

request for reconsideration. Id. at 11-28. On June 21, 2012, OPM issued a 

reconsideration decision denying the appellant’s application for disability 

retirement benefits. Id. at 5-9. 

¶3 The appellant filed an appeal with the Board, and, after holding a hearing, 

the administrative judge issued an initial decision reversing OPM’s 

reconsideration decision. IAF, Tab 24, Initial Decision (ID). The administrative 

judge found that the appellant established by a preponderance of the evidence that 

she met the requirements to qualify for disability retirement benefits under FERS. 

ID at 12.

¶4 OPM has filed a petition for review. Petition for Review (PFR) File, 

Tab 1. The appellant has filed a response opposing OPM’s petition. PFR File, 

Tab 3.

ANALYSIS

¶5 To qualify for disability retirement benefits under FERS, an employee must 

establish that: (1) she has completed at least 18 months of civilian service 

creditable under FERS; (2) while employed in a position subject to FERS, she 

became disabled because of a medical condition, resulting in a service deficiency 

in performance, conduct, or attendance, or, if there is no such actual service 

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 

application is filed; (4) accommodation of the disabling medical condition in the 

position held must be unreasonable; and (5) she must not have declined a 

reasonable offer of reassignment to a vacant position. 5 C.F.R. § 844.103(a). It 
3

is undisputed that the appellant completed 18 months of service creditable under 

FERS.1

 

¶6 OPM argues on review that the administrative judge erred by finding that 

the appellant established a prima facie case of entitlement to disability retirement 

benefits because she was removed from her position for inability to perform the 

essential functions. PFR File, Tab 1 at 5. OPM also argues that the appellant 

failed to prove her qualification for disability retirement benefits because she 

applied for a position similar to her former position at the USDA, applied for 

other full-time positions, and was employed in various part-time positions after 

she allegedly became disabled from her USDA position. Id. at 7-9. OPM asserts 

that the medical evidence the appellant produced was insufficient to meet her 

burden of proving that she was unable to render useful and efficient service in her 

position. Id. at 6, 8-9.

The administrative judge did not err in applying the Bruner presumption.

¶7 An employee’s removal for inability to perform the essential functions of 

her position constitutes prima facie evidence that she is entitled to disability 

retirement benefits. Bruner v. Office of Personnel Management, 996 F.2d 290, 

294 (Fed. Cir. 1993). The burden of production then shifts to OPM to produce 

evidence sufficient to support a finding that the appellant is not entitled to 

disability retirement benefits. Harris v. Office of Personnel Management, 

110 M.S.P.R. 249, ¶ 5 (2008). OPM can meet its burden of production and rebut 

the Bruner presumption by demonstrating a lack of objective medical evidence 

providing a reasoned explanation of how certain aspects of a particular condition 

render the employee unable to perform specific work requirements. Id. If OPM 

meets its burden of production, then the Board will weigh the totality of the 

 

1 The parties stipulated that the appellant began working at the USDA on February 9, 

2003, and was separated on May 21, 2011; therefore, she completed the requisite 

18 months of creditable service under FERS. See IAF, Tab 16. 
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evidence produced by both sides to determine if the appellant is entitled to 

disability retirement benefits. Trevan v. Office of Personnel Management, 

69 F.3d 520, 527 (Fed. Cir. 1995). In spite of the shifting burdens of production, 

the appellant retains the ultimate burden of persuasion to establish entitlement to 

disability retirement benefits. Newkirk v. Office of Personnel Management, 

101 M.S.P.R. 667, ¶ 15 (2006). 

¶8 OPM argues that the administrative judge erred in applying the Bruner

presumption because the appellant did not produce copies of a Standard Form

(SF) 50, a proposal, or a decision to remove her for inability to perform the 

essential functions of her position. PFR File, Tab 1 at 5. The appellant, 

however, is not required to produce any specific documentary evidence before the 

Bruner presumption applies. The appellant was required to produce sufficient 

evidence to support a finding in her favor. See Bruner, 996 F.2d at 293. In an 

appeal from an OPM reconsideration decision involving retirement benefits, the 

appellant has the burden of proving entitlement to benefits by a preponderance of 

the evidence. 2

 See 5 C.F.R. § 1201.56(a)(2). Here, the administrative judge 

found that, even without an SF-50, a proposal notice, or a decision, the appellant 

met the preponderance of the evidence standard by producing enough other 

relevant evidence. ID at 6-7. Having reviewed the record, we agree. 

¶9 The USDA provided the appellant with a temporary accommodation of a 

part-time schedule but stated that she could not be accommodated permanently in 

this way. IAF, Tab 5 at 54-55. The USDA also conducted a reassignment search 

and was unable to identify a vacant position to which the appellant could be 

reassigned. Id. at 46; Hearing Tape (HT) (testimony of an Outreach, Diversity 

and Equal Employment Opportunity Specialist). Reassignment is the reasonable 

 

2 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2). 
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accommodation of last resort, which is required only after it has been determined 

that there are no effective accommodations that will enable the employee to 

perform the essential functions of her current position or that all other reasonable 

accommodations would impose an undue hardship. Combs v. Social Security 

Administration, 91 M.S.P.R. 148, ¶ 26 (2002). The appellant testified that she 

was notified that she would be removed from her position on May 20, 2011, for 

her inability to report to duty on a full-time basis. HT (testimony of the 

appellant). The appellant was removed on May 21, 2011. IAF, Tab 5 at 66. The 

administrative judge appropriately analyzed the record evidence and found no 

evidence that the appellant was separated for reasons other than the reduction in 

her schedule, which was attributable to her migraine headaches. ID at 6. In the 

absence of any contradictory evidence, we agree with the administrative judge’s 

finding that this is sufficient evidence to meet the preponderance of the evidence 

standard and apply the Bruner presumption. ID at 5-6.

¶10 Once the Bruner presumption applies, the burden of production shifts to 

OPM to produce evidence sufficient to support a finding that the appellant is not 

entitled to disability retirement benefits. Harris, 110 M.S.P.R. 249, ¶ 5. OPM 

argues that the administrative judge erred by not allowing OPM to rebut the 

Bruner presumption by demonstrating the lack of objective medical evidence. 

PFR File, Tab 1 at 5-7. The initial decision does not state that OPM’s reliance on 

the absence of objective medical evidence was insufficient to rebut the Bruner 

presumption. In determining whether the appellant met her ultimate burden of

persuasion, the administrative judge considered the totality of the evidence 

produced by both parties and found that the appellant proved her entitlement to 

disability retirement benefits by a preponderance of the evidence. ID at 12. 

Successfully rebutting the Bruner presumption shifted the burden of production 

back to the appellant but was not dispositive as to whether she was entitled to 

disability retirement benefits. See Rucker v. Office of Personnel Management, 

117 M.S.P.R. 669, ¶ 5 (2012) (if OPM produces sufficient evidence to rebut the 
6

Bruner presumption, the appellant then must come forward with evidence to rebut 

OPM’s assertion that she is not entitled to benefits). 

The administrative judge did not err in applying 5 C.F.R. § 844.103(a).

¶11 OPM argues that the record contains “a dearth of medical evidence” to 

show that the appellant had a disability when she separated and that her disability 

continues to the present. PFR File, Tab 1 at 8. The appellant had no obligation 

to produce evidence that her disabling condition was permanent or continued 

until the day of the hearing, which took place 3 years after her application for 

disability retirement benefits.

3

 The appellant was obligated only to show that her 

disabling condition existed while she was employed in a position covered by 

FERS and was expected to continue for at least 1 year from the date of her 

application for disability retirement. See 5 C.F.R. § 844.103(a)(2)-(3). OPM 

asserts that the record does not contain any medical evidence produced since 

2011. PFR File, Tab 1 at 8. The appellant’s application for disability retirement 

was filed in March 2011. IAF, Tab 5 at 37. The last medical report the appellant 

provided in support of her disability retirement application is dated March 30, 

2011, and states that her medical condition would continue for more than 1 year. 

Id. at 45. 

¶12 OPM continues to argue on review, as it argued before the administrative 

judge, that the appellant did not produce sufficient medical evidence of her 

disabling medical condition. PFR File, Tab 1 at 8-9. Objective medical evidence 

is only one of several factors to be considered in determining entitlement to 

disability retirement benefits. Henderson v. Office of Personnel Management, 

117 M.S.P.R. 313, ¶¶ 19-21 (2012). The Board has always stated that it will 

consider all pertinent evidence in determining an appellant’s entitlement to 

 

3 The length of time between the appellant’s separation and the hearing was attributable 

in part to OPM’s sending the reconsideration decision to the wrong address. IAF, Tab 1 

at 7. 
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disability retirement benefits. Id. The lack of objective medical evidence cannot 

be used as the sole basis for denying an applicant disability retirement benefits. 

See Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1039-43 

(Fed. Cir. 2007). For instance, subjective evidence, i.e., testimony or written 

statements concerning symptoms that are submitted by the appellant, “may be 

entitled to great weight on the matter of disability, especially where such 

evidence is uncontradicted in the record.” Chavez v. Office of Personnel 

Management, 6 M.S.P.R. 404, 418-22 (1981); see Biscaha v. Office of Personnel 

Management, 51 M.S.P.R. 304, 309 (1991) (an appellant’s subjective evidence of 

pain must be considered seriously, where it is supported by competent medical 

evidence). Although OPM noted in its reconsideration decision that the 

appellant’s medical records did not contain the results from diagnostic studies, 

IAF Tab 5 at 8, the Board has found that there are no physical changes ordinarily 

associated with migraine headaches other than those changes associated with 

pain, Cole v. Office of Personnel Management, 88 M.S.P.R. 54, ¶ 8 (2001).

¶13 The record contains a medical report dated March 30, 2011, stating that the 

appellant was first diagnosed with migraine headaches in 1999, the frequency of 

her migraine headaches increased in 2008, her migraine headaches were not 

alleviated by a variety of treatments including medication, exercise, and diet, her 

migraine headaches were triggered by stress and hormonal fluctuations, and her 

migraine headaches were expected to last for more than 1 year. IAF, Tab 5 at 45. 

The medical report requests that the appellant be allowed to work 80% of her 

schedule. Id. The appellant’s supervisor at the USDA stated that a permanent 

reduction to an 80% schedule would represent an unacceptable reduction in the 

appellant’s productivity. Id. at 55. He also stated that the appellant’s reduced 

work schedule severely hampered her ability to complete projects in a timely 

manner. Id. at 39. The appellant testified that her migraine headaches prevented 

her from being able to perform the complex technical tasks of her position. HT 

(testimony of the appellant). 
8

¶14 Two methods exist for demonstrating eligibility for disability retirement 

benefits, either the employee can show that her medical condition: (1) affected 

her ability to perform specific work requirements, prevented her from being 

regular in attendance, or caused her to act inappropriately; or (2) is inconsistent 

with working in general, in a particular line of work, or in a particular type of 

work setting. Rucker, 117 M.S.P.R. 669, ¶ 10. OPM argues that the appellant 

failed to establish her entitlement to disability retirement benefits because she 

applied for full-time positions and held several part-time positions after she filed 

her disability retirement application. PFR File, Tab 1 at 7. However, the 

appellant was not required to show that her disability rendered her incapable of 

working all positions. The relevant position for determining the appellant’s 

qualification for disability retirement benefits was the position she last held 

before filing her application. See 5 U.S.C. § 8451(a) (an employee is considered 

disabled if she is unable to render useful and efficient service in her position and 

she has not declined a reasonable offer of reassignment); see also Eshelman v. 

Office of Personnel Management, 72 M.S.P.R. 173, 176 (1996). The appellant 

met her burden by showing that her migraine headaches prevented her from 

performing the requirements of the position she held at the time of her application 

for disability retirement benefits. The fact that the appellant has been able to 

work part-time positions with duties and responsibilities that are different from 

the position she held at the USDA (e.g., substitute teacher) is immaterial to 

determining whether her condition affected her ability to perform the specific 

work requirements of the position she held at the USDA. The appellant provided 

unrebutted testimony that the Biological Science Laboratory Technician position 

she applied for at the USDA after she filed her application for disability 

retirement was less technical in nature than her former position and that she 

believed the position for which she applied would be less stressful and less likely 

to trigger her migraine headaches. HT (testimony of the appellant).
9

¶15 The initial decision reflects that the administrative judge considered the 

totality of the evidence produced by both parties, applied the correct legal 

standards, and came to the well-reasoned conclusion that the appellant had met 

her burden of proving her entitlement to a disability annuity at the time of her 

application. ID at 4-12. We find no basis for disturbing those findings on 

review.

ORDER

¶16 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.

¶17 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).

¶18 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).

¶19 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)).
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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 (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b); 

or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R. 

§§ 1201.201, 1202.202, and 1201.203. If you believe you meet these criteria, you 

must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE 

DATE OF THIS DECISION. You 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 United 

States 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 
11

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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.