UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DONNA K. SHARLOFSKY,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-844E-13-0463-I-1

DATE: August 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Donna K. Sharlofsky, Summerton, South Carolina, pro se.

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

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice 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 that denied the 

appellant’s application for Federal Employees’ Retirement System (FERS)

disability retirement benefits. Generally, we grant petitions such as this one only 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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, and based on the following points and authorities, 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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In May 2012, the appellant filed a disability retirement application under 

FERS based on rheumatoid arthritis and back pain. See Initial Appeal File (IAF), 

Tab 5 at 26-27. OPM denied her application in initial and reconsideration 

decisions. See id. at 4-6 (reconsideration decision), 20-23 (initial decision). The 

appellant filed a Board appeal, and a hearing was held. IAF, Tab 1; Hearing CD. 

The administrative judge issued an initial decision, in which she reversed OPM’s 

reconsideration decision and found that the appellant was entitled to disability 

retirement benefits. IAF, Tab 16, Initial Decision (ID). OPM filed a petition for 

review, and the appellant filed a brief response. Petition for Review (PFR) File, 

Tabs 1, 3. In its petition, OPM asserts that: (1) there is a dearth of medical 

evidence to support the appellant’s subjective complaints of disability prior to her 

resignation; (2) the administrative judge ignored certain conflicting evidence and 

misapplied the law in considering the appellant’s post-separation medical 
3

evidence; and (3) the issues of accommodation and reassignment are moot

because the appellant failed to establish a disabling medical condition. We have 

considered OPM’s arguments on review, but none warrant a different outcome.

¶3 On review, OPM asserts that there is “no evidence showing any 

disability prior to [the appellant’s] resignation,” and it contends that the 

administrative judge’s analysis was inconsistent with Newkirk v. Office of 

Personnel Management, 101 M.S.P.R. 667 (2006), Caponetto v. Office of 

Personnel Management, 12 M.S.P.R. 330 (1982), and Shanoff v. Office of 

Personnel Management, 103 M.S.P.R. 549 (2006), because there was no 

competent medical evidence to support and corroborate her claim of disability. 

PFR File, Tab 1 at 5 (emphasis in original). OPM acknowledges, however, that 

the appellant produced a May 17, 2012 medical report, which predated her 

resignation. Id. This report stated, among other things, that: (1) the appellant 

was a patient since 2009; (2) she was diagnosed with rheumatoid arthritis in 

2002; (3) she has pain in her ankle, back, knee, shoulder, and arm; (4) her range 

of motion decreased due to chronic pain; (5) she was in a motor bike accident in 

2011, which resulted in two broken vertebrae and a fractured right forearm; (6) 

she was given anti-inflammatories and pain medications but they did not help her 

pain; (7) she cannot sit or stand for longer than 45 minutes or “type in a 

continuous manner due to pain”; and (8) she was not recommended to work 

“[g]iven the progression of the arthritis.” IAF, Tab 5 at 38-39. Moreover, the 

appellant testified, credibly and without contradiction, regarding the progression 

of her rheumatoid arthritis and back condition, her pain and physical limitations, 

her inability to perform virtually any of her Supply Technician duties, and her 

attempts to obtain additional medical records from her doctors to support her 

disability retirement application. Hearing CD. 

¶4 We find that the May 17, 2012 report constitutes competent medical 

evidence to support the appellant’s application for disability retirement. See 

Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed. 
4

Cir. 2007) (“[A]n 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.”). Importantly, the Board has held that medical conclusions 

based on a long familiarity with a patient are of greater weight than those based 

on a brief association. Tan-Gatue v. Office of Personnel 

Management, 90 M.S.P.R. 116, ¶ 11 (2001), aff’d, 52 F. App’x 511 (Fed. Cir. 

2002). The May 17, 2012 medical report was written by a doctor who had seen 

the appellant for 3 years, and the appellant testified that she saw him almost 

monthly prior to her resignation. See IAF, Tab 5 at 38-39; Hearing CD. 

¶5 OPM also claims that the initial decision was inconsistent with Rapp v. 

Office of Personnel Management, 108 M.S.P.R. 674 (2008), which required the 

Board to consider contrary or conflicting medical evidence. See PFR File, Tab 1 

at 5-6. In this regard, OPM notes that the appellant certified that she was unable 

to walk or stand due to her medical condition, but the June 4, 2013 medical report 

states that the appellant is able to “walk and hike without any complaints,” her 

gait is “normal,” and the doctor advised the appellant to “Turn Your Walk Into a 

Workout.” Id. at 6 (emphasis in original). Compare IAF, Tab 5 at 26 (the 

appellant’s application), with IAF, Tab 12 (the June 4, 2013 report). 

¶6 The administrative judge did not note these portions of the June 4, 2013 

report in the initial decision. However, the administrative judge’s failure to 

mention all of the evidence of record does not mean that she did not consider it in 

reaching her decision. Marques v. Department of Health & Human 

Services, 22 M.S.P.R. 129, 132 (1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985) 

(Table). We have considered these alleged inconsistencies, but they do not 

warrant a different outcome. For instance, the appellant does not state in her 

application for disability retirement that she was unable to walk or stand at all; 

rather, she asserted that she has “difficulty walking” and she was “unable to sit or 

stand for long periods of time.” IAF, Tab 5 at 26. 
5

¶7 The June 4, 2013 report states that the appellant “[e]xercises 

regularly-walks three times a day with dog,” “can hike without [shortness of 

breath],” and, in the “Pt Education” section, states “Turn Your Walk Into a 

Workout.” See IAF, Tab 12. However, the appellant testified that the “walk” 

with the dog involved going into her backyard for 10 minutes, and she stated that 

her backyard is a flat surface. Hearing CD. She also testified that she did not tell 

the doctor that she participates in hiking; rather, she stated that, while she used to 

exercise and hike, she was no longer able to exercise at all, and she explained that 

even physical therapy was “too hard on [her] hands” and it “upped” her blood 

pressure. Id. In her response to the petition for review, the appellant states that 

the reference to “Turn Your Walk Into a Workout” was a flyer that the doctor 

gave to every patient. See PFR File, Tab 3. Finally, we find that the statement 

that the appellant’s gait is “normal” is not inconsistent with her testimony or 

medical evidence supporting her claim of disability retirement. For these reasons, 

we are not persuaded that this evidence calls into question the appellant’s 

veracity.

¶8 OPM also contends that the administrative judge improperly considered 

post-separation evidence, i.e., the June 4, 2013 medical report. See PFR File, Tab 

1 at 6-7 (citing Reilly v. Office of Personnel Management, 571 F.3d 1372, 

1381-83 (Fed. Cir. 2009)). OPM asserts that this medical information is 

probative “only if” it links the condition to the time while the employee was 

covered under FERS, but the June 4, 2013 report does not satisfy this criteria: it

is over 1 year past her resignation date, it discusses conditions that are not the 

subject of her disability retirement application, and it discusses her condition 

after she resigned, not when she was in a position covered under FERS. Id.

(emphasis in original).

¶9 In Reilly, our reviewing court held that the Board erred in adopting a 

categorical rule barring consideration of post-retirement evidence. Reilly, 571 

F.3d at 1382. Rather, the court noted that, “[w]here proximity in time, lay 
6

testimony, or some other evidence provides the requisite link to the relevant 

period the subsequent medical evidence can be very probative of a prior 

disability.” Id. Here, we find that the June 4, 2013 report has probative value

because it corroborated the appellant’s testimony regarding the pain and other

disabling symptoms stemming from her rheumatoid arthritis that she was 

experiencing at the time of her resignation in May 2012.

2

 

¶10 Finally, we are not persuaded by OPM’s contention that the accommodation 

and reassignment issues are moot because the appellant did not prove that she had 

a disabling condition. PFR File, Tab 1 at 7-8. The administrative judge carefully 

considered the record evidence and concluded that the appellant met her burden in 

this regard. See ID at 8-12. We discern no reason to disturb her findings. See 

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to 

disturb the administrative judge’s findings where the administrative judge 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human 

Services, 33 M.S.P.R. 357, 359 (1987) (same). 

¶11 We have considered OPM’s assertion that the Supervisor Statement 

contradicts the Agency Certification of Reassignment and Accommodation 

Efforts, and that, pursuant to Sucic v. Office of Personnel 

Management, 64 M.S.P.R. 281 (1994), the appellant’s supervisor’s statement 

should be entitled to more weight. PFR File, Tab 1 at 7-8. Compare IAF, Tab 5 

at 29-31 (the Supervisor Statement states that there was no record of a request 

from the appellant or document that a special accommodation was needed or that 

the appellant has a disability), with id. at 35-36 (the agency certified that “the 

medical evidence presented to the agency shows that accommodation is not 

possible due to severity of medical condition and the physical requirements of the 

 2 We only consider the June 4, 2013 medical report as it relates to the conditions that 

the appellant identified in her disability retirement application, i.e., rheumatoid arthritis 

and back pain.
7

position” and that reassignment is not possible). The appellant, in her testimony, 

admitted that she did not recall if she made any written accommodation requests

to her supervisor, but she testified without contradiction that the agency provided 

her with various accommodations, in the form of no travel, a special keyboard,

and a foot stool. Hearing CD. She also testified that her supervisor was well 

aware of her condition, expressed concern to her about the toll that the condition 

was taking on her, and had even recommended that she stop working. Id.

¶12 In Sucic, 64 M.S.P.R. at 284-87, the Board determined that the testimony of 

the individuals who worked with the appellant “was entitled to greater weight 

than [the] statement in the Agency Certification that the Postal Service could not 

accommodate the appellant.” In the initial decision, the administrative judge 

similarly determined that the Supervisor Statement was entitled to less weight in 

light of other evidence in the record, including the appellant’s own testimony. 

See ID at 11-14. Although the administrative judge did not cite to Hillen v. 

Department of the Army, 35 M.S.P.R. 453 (1987), we note that the contradiction 

of one version of events by other evidence is a proper factor for making a 

credibility determination. See Hillen, 35 M.S.P.R. at 458. We therefore discern 

no error with the administrative judge’s decision in this regard.

ORDER

¶13 Based on the above reasons, 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.

¶14 We also ORDER OPM to tell the appellant promptly in writing when it 

believes it has fully carried out the Board's Order and of 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).
8

¶15 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).

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 

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 
9

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 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board