NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit
2009-3107

WANDA N.D. THOMAS, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Wanda N.D. Thomas , of Evans, Georgia, pro se. Shari A. Rose , Trial Attorney, Commercial Litigat ion Branch, Civil Division, United States Department of Justic e, of Washington, DC, for respondent. With her on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Harold D. Lester, Jr. , Assistant Director.
Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3107

WANDA N.D. THOMAS, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Petition for review of the Meri t Systems Protection Board in AT831E080086-I-2.

___________________________ DECIDED: February 4, 2010

___________________________ Before DYK, SCHALL, and PROST, Circuit Judges

. PER CURIAM. Wanda Thomas (“Thomas”) appeals from a fi nal decision of the Merit Systems Protection Board (“MSPB” or “B oard”). The Board affirmed the Office of Personnel Management’s (“OPM’s”) denial of disability retirement benefits under the Federal Employees Retirement System (“FERS”), 5 U.S.C. § 8451. See Thomas v. Office of Pers. Mgmt. , No. AT-831E-08-0086-I-2 (M.S.P.B. De c. 2, 2008) (“Thomas II”). We affirm

.BACKGROUND Thomas began working for the Department of the Army (“Army”) on October 24, 2002. Effective October 2, 2005, Thomas was demoted from the position of Supervisory Management Analyst, General Schedule 12 (“GS-12”), to Management Analyst, GS-9, due to her alleged failure to successfully complete a one-year supervisory probationary peri od for the GS-12 position. She never reported for duty in the GS-9 position. Effectiv e July 21, 2006, the Army removed her from civilian service for misconduct, namely, her failure to meet attendance requirements for the GS-9 position. Thomas filed for disability retirement benef its in January of 2 007. On April 25, 2007, OPM wrote Thomas a letter, requesting that she provide additional medical information to establish that her service def iciencies were the result of a disabling medical condition. Thomas failed to provide the requested information, and OPM denied benefits on July 5, 2007. After Thomas requested reconsideration, OPM affirmed its earlier decision on October 4, 2007, again noting Thomas’ failure to supply the requested additional medica l documentation. Thomas then appealed to the Board. In an initial decision dated Ju ly 31, 2008, an Administrative Judge (“AJ”) affirmed OPM’s decision, concluding that Thomas had not intr oduced sufficient evidence to establish her entitlement to disability re tirement benefits under FERS. Thomas v. Office of Pers. Mgmt. , No. AT-831E-08-0086-I-2 (M. S.P.B. July 31, 2008) (“ Thomas I ”). On December 2, 2008, the Board denied Thom as’ petition for review, and the initial decision became the final decision of the Board. Thomas timely petitioned for review in this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).

2009-3107 2DISCUSSION The scope of our review in an appeal from a Board decision arising out of an OPM disability determination is very narrow. See Lindahl v. Office of Pers. Mgmt. , 470 U.S. 768, 791 (1985). We must affirm the Board’s decision unless “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 determination.’” Id. (citations omitted). Pursuant to 5 U.S.C. § 8451(a)(1)(B), an employee is only entitled to FERS disability if she was unable “to render useful and efficient service in the employee’s position” prior to her removal from federal service due to a disease or injury. Thomas had the burden to prove by a preponderance of t he evidence that she “had a medical condition that was incompatible with either useful and effici ent service or retention in [her] position.” Thomas I , slip. op. at 6 (citing Gometz v. Office of Pers. Mgmt. , 69 M.S.P.R. 115, 121 (1995); 5 C.F.R. § 844.103(a)(2)); see also 5 C.F.R. § 1201.56(a)(2); § 844.103(a). The Board observed that Thom as claimed she was debilitated to the point of being unable to perform us eful and efficient service in the GS-9 position due to “Diabetes; Depression; Agoraphobi a; Hypertension; High Choles terol; Morbid Obesity; Cholecystectomy; Angina; Asthma; Back Pain ; Fibromyalgia; Nerve Loss; Right and Left Knee Pain; Migraines; Hysterectomy; Enla rged Thyroids; Blindness In Left Eye; Amblyopia; Hearing Loss; Shingles; and [Incontinence].” Thomas I , slip. op. at 2. After considering the objective and subjective evi dence of Thomas’ disab ility, as well as the position description for the GS-9 position, the Board found “that the totality of the evidence is insufficient to establish whether the appellant is unable to perform useful

2009-3107 3and efficient service in the position.” Id. at 7. The Board furt her noted that Thomas had not applied for disability retirement unt il after she had been removed for misconduct, which detracted from the fo rce of her application. Id. at 8. Thomas contends that the Board erred by failing to consider her mental, physical, and personal problems and by ex cluding certain evidence. The Board explicitly did consider Thomas’ mental and physical problems. See id. at 7-11. The excluded evidence did not relate to her medical conditi on. To the extent that Thomas disagrees with the weight the MSPB gave to the evidence, reviewing the weight of the evidence or the factual underpinnings of the MSPB’s decision is beyond our limited jurisdiction. Lindahl , 470 U.S. at 791; Davis v. Office of Pers. Mgmt. , 470 F.3d 1059, 1060-61 (Fed. Cir. 2006); Licausi v. Office of Pers. Mgmt. , 350 F.3d 1359, 1361 (Fed. Cir. 2003). Thomas also suggests, in her reply brief, that the Board failed to consider that she has received disability determinations fr om the Social Security Administration (“SSA”) and the Department of Labor. While t he Board did not explicitly discuss this evidence in its decision, we must pr esume that the Board reviewed it. See Gonzales v. West , 218 F.3d 1378, 1381 (Fed. Cir. 2000) (“[A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the . . . determination . . . must be presumed to have been reviewed by t he [fact finder], and no further proof of such review is needed.”); see also Lowder v. Dep’t of Homeland Sec. , 504 F.3d 1378, 1383 (Fed. Cir. 2007) (holding that a fact finder ’s failure to discuss particular evidence does not mean that it did not c onsider that evidence). Thus, this argument goes to the weight of the evidence considered by t he Board and is a matter beyond our limited

2009-3107 42009-3107 5 jurisdiction. Lindahl , 470 U.S. at 791. 1 Under the Lindahl standard, there is no ground for setting aside the Board’s decision. COSTS

No costs.

1 Even if we could review the wei ght of the SSA evidence, the SSA “found that . . . THOMAS became disabled under our rules on January 26, 2007.” Resp’t’s App. 121. Because Thomas was removed from the GS-9 position six months before the date the SSA determined her disability began, this evidence undermines Thomas’ argument that she became disabled while employed in a FERS position.