An appeal of a reconsideration denial of a disability claim must be taken to the Social Security Administration's Office of Disability Adjudication and Review in a timely fashion (usually within 60 days of receiving the denial). More than half of all claimants win benefits at this level of the disability process making it the most successful phase of the disability insurance benefits process.
An administrative law judge employed by the Social Security Administration presides over the appeal hearing. Testimony is taken under oath from the claimant and a vocational expert (in most circumstances) but the Federal Rules of Civil Procedure and the Federal Rules of Evidence are used as guidance rather than strict procedural restraints (the Administration has its own procedure manual for these hearings).
The judge and the claimant's attorney ensure that all relevant medical records are introduced into evidence, and that the claimant's medical condition, history, education, training and limitations caused by the disability are entered into the record on direct examination. The judge and the attorney will also examine a vocational expert regarding potential jobs in the local and national economies that could be performed by someone with the claimant's limitations.
The claimant's attorney would then give a short closing statement summarizing why the claimant should be paid disability benefits. Payments hinge on two arguments: that the claimant meets the medical disability definition (a listing) or that he is disabled according to vocational factors.
Due to increased inquiries from claimants and a number of requests from other attorneys, I am pleased to announce that I will be representing clients in appeals before the Social Security Administration's Office of Disability Adjudication and Review (ODAR) in Dover, De. This office services Social Security field offices in Delaware (Dover, Georgetown and New Castle), Maryland (Elkton, Cambridge and Salisbury) and Virginia (Accomac).
The Dover ODAR reported the following statistical accomplishments to Congress in the last last three fiscal years:
Fiscal Year 2005 - 1,800 case dispositions
Fiscal Year 2006 - 1,989 case dispositions
Fiscal Year 2007 - 1,641 case dispositions
Note that the drop off in total decisions in 2007 is likely due to a decrease in the number of Dover administrative law judges from five to four. Those production numbers are expected to rise, however, as public pressure to address the backlog of approximately 750,000 pending Social Security disability cases led to about 1,000 Social Security administrative law judge position openings being advertised in July 2008 (SSA received enough candidates to close the job posting within a week).
If you would like to speak with me about your Social Security disability appeal, please call me toll free at (877) 297-8252 or at (215) 665-5656.
On August 28, 2008, Charley Mapa, President, National League of Postmasters, wrote that Postal Headquarters informed him of approval "from ...OPM to offer Voluntary Early Retirement to Postmasters." Mr. Mapa's announcement has generated even more interest about VER versus disability retirement in the past few days than had existed. I will try to answer the three most common questions in the debate about which retirement is better:
Should I use a retirement calculator to determine the more valuable annuity? Possibly, but a certified financial planner with CSRS/FERS retirement system experiencewill be able to answer questions about your specific situation - a calculator cannot give advice on insurance
Can I file for disability retirement after accepting VER? An employee may file within one year of separating from service
Should I file for the disability retirement if the monthly payment would be higher than VER? Not necessarily. The disability retirement comes with income restrictions - this may not be an issue today, but it may be in a year or two
If you are serious about early retirement, find a certified professional to help you plan for your financial future.
A Federal employee who believes that he has been discriminated against (or faced retaliation for participating in the EEO process or for opposing discriminatory practices) on the basis of race, color, sex, religion, national origin, disability status or age must contact an Equal Employment Opportunity counselor for the purposes of precomplaint counseling before the formal EEO process can begin. The three reasons given for the so-called informal counseling period are as follows:
To give the agency notice of the employee's claim
To assist the employee in defining the complaint against the agency
To resolve the complaint informally (if possible)
The aggrieved employee must contact an EEO counselor within 45 days of the discriminatory or retaliatory action to comply with 29 CFR Section 1614.105(a)(1).
Most potential clients ask me whether one should try to file for an OPM disability retirement without an attorney first, and then get a lawyer involved at either the reconsideration stage or for the MSPB appeal. I do not know a one-size-fits-all answer to that question but I believe I have found a fact pattern from a fairly recent case that illustrates the potential hazards of self-representation. Please read the following paragraph with the assumption that the only legal issue in play regarding the disability retirement is our old friend – the worker’s inability to perform the duties of his position.
·A carrier for the U.S. Postal Service filed for disability benefits prior to his last day in pay status based on heart problems, bleeding ulcers, emphysema, Reiter’s Syndrome, migraines, colon problems, depression, bipolar disorder and panic attacks. The worker submitted documentation from his physician indicating that his eventual return to any work because of multiple problems was “doubtful.” The appellant record also includes evidence showing that the SSA found he met the medical requirements for Social Security benefits
One additional factor should be considered before drawing a conclusion concerning this employee’s entitlement. The worker expressed concern that he might harm himself or others if he were to continue in his position. In Widmer v. OPM, 103 MSPR 363 (2006), the Board found in favor of disability benefits in a case involving fear expressed by co-workers. (Not an exact match with the facts in this case, but Widmer did spark debate in this matter.)
So, did the carrier win his appeal for disability retirement benefits before the full Board? No. In a 2-1 decision, the Board found no reversible error on the part of the administrative judge (AJ) despite the SSA disability benefit award and the compelling argument in Member Sapin’s dissent that all prerequisites to a Federal disability retirement case had been satisfied. The Board denied the appellant’s application on the grounds that he did not show an inability to perform the duties of his position.
Here is what a Federal disability lawyer would have done differently at each stage of this process to avoid these denials:
1.Initial OPM Application - Establish a relationship with the treating physician(s) from the outset. Explain the differences between OPM disability retirement procedures and SSA, OWCP and other types of applications the doctor(s) has prepared in the past. Assist the doctor(s) in preparation and editing of narrative so that a nexus between the medical conditions and the inability to perform essential job functions would be apparent to the OPM benefits specialist. This process can sometimes take 60 days
2.OPM Reconsideration Stage – Request extension. Immediately review OPM decision for details of underlying reasons for denial. Focus reconsideration reply on those issues (test results, side effects of medications, additional narratives from specialists, etc.)
3.MSPB Appeal – This should be treated just as any other MSPB appeal, that is, full-scale litigation. Create clear record with all evidence preserved for appeal. In above case, settlement would have been discussed with agency lawyer in light of strength of case
4.Full Board Appeal – Highlight legal error such as failure to weigh subjective medical evidence, award of SSA benefits in appeal to the Board
5.U.S. Court of Appeals for the Federal Circuit – last and final hope for reversing legal error. Focus on precedent cited in dissenting opinion in hopes of winning appeal
The question of whether to hire a professional or to do it oneself is no different in OPM disability law than in home improvement. The complexity of the project could lead to catastrophe, however.
An employee bears the burden of persuasion by a preponderance of the evidence in appeals from OPM’s denial of a disability retirement application; see 5 CFR Section 1201.56(a)(2) and Chavez v. OPM, 6 MSPR 404, 417 (1981). In the matter of Thieman v. OPM, 78 MSPR 113 (1998), a medical officer for the Federal Aviation Administration (FAA) submitted an application for a disability retirement based upon major depression and back pain. OPM denied this claim at the first level and again upon reconsideration. An administrative judge (AJ) affirmed OPM’s reconsideration decision based on Dr. Thieman’s failure to show that he was unable to perform his duties while employed by the FAA (in other words, he performed at a satisfactory level according to the AJ).
The Board took up this case and reversed OPM and the AJ. The legal analysis focused on the following question:
Did Dr. Thieman, while employed in a position subject to FERS, become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there was no such deficiency, was the disabling medical condition incompatible with either useful and efficient service or retention in the position?
A good deal of published material on this case focused on Dr. Thieman’s alleged lack of a position description and its role in establishing entitlement to a disability retirement annuity. Even though Travis v. OPM, 12 MSPR 291 (1982), held that an employee is not prevented from making a disability case without a program description, the former Federal manager in me found the thought of a modern position without description intriguing. A careful reading of the case, however, revealed that Dr. Thieman did, in fact, submit a position description in the appellant record (but not, apparently, his most recent performance appraisal).
The Board allowed evidence of the Social Security Administration’s (SSA) grant of disability benefits after the record closed on review. In my opinion, the majority’s narrow conclusion that Dr. Thieman’s one medical condition (major depression) was incompatible with retention in a sensitive and demanding medical officer position relied heavily on the SSA grant of disability benefits. Pro se filers should take note of two points from this article. First, evidence from the SSA or the OWCP of a disability or inability to work because of injury or illness may sway the FERS disability finder of fact (in this case, new evidence was considered by the Board). Second, do not rely on the analysis and conclusions of others, these cases are available on the Internet.
A 30 year employee of the VA filed for a disability retirement based upon an array of psychological illnesses, including major depression and anxiety disorder. Both OPM and MSPB denied her claim despite uncontroverted medical testimony that the employee likely would never be able to return to work because of her disabling condition. Both OPM and MSPB gave no weight to the employee's medical evidence because it was considered subjective in nature, so her claim was rejected.
The U.S. Court of Appeals for the Federal Circuit reversed OPM and MSPB in Vanieken-Ryals v. OPM, decided November 26, 2007, because of legal error in requiring objective medical evidence to support a disability retirement application. The court made two very important statements with respect to the nature of medical evidence:
OPM's own regulations require documentation from "a licensed physician or other appropriate practitioner," that must "be justified according to established diagnostic criteria," and the documentation must conform to "accepted professional standards."
Objective medical evidence is not required by any statute, regulation or precedent
The Vanieken-Ryals case is an important decision for all employees whose injuries or illnesses do not necessarily show up clearly on diagnostic tests or whose pain is self reported. In addition to psychiatric illnesses, neurological conditions and back problems are the most common subjective conditionsthat trouble OPM and MSPB.
This decision should eliminate any confusion about the alleged necessity of objective medical evidence in support of a disability retirement application.
The Merit Systems Protection Board (MSPB) recently decided the case of Tress v. OPM, 2008 MSPB 125, an appeal of an OPM final decision regarding an annuity reduction. The appellant completed the MSPB appeal form enclosed with OPM's decision but timely mailed the appeal to OPM instead of to the Board.
OPM forwarded Tress's appeal to the Board but it was received after the 30 day appeal deadline. The administrative judge (AJ) dismissed the appeal as untimely filed; the Board reversed the initial decision and remanded the case for adjudication on the merits. The Board carved out an exception to the general rule that appellants must follow explicit appeal instructions due to the following circumstances:
The delay was exacerbated by OPM's failure to redirect the appellant's timely appeal to the Board
The appellant's clear intent was to appeal the annuity reduction
The appellant represented himself; and
There would be no prejudice to the agency
Please pay close attention to all correspondence from OPM, particularly any mail that will impact the annuity. Many free resources are available to assist with questions regarding the proper way to appeal the type of decision described above. Every case should be heard on its merits.
The general eligibility provisions for disability retirement under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) are outlined at Title 5 of the United States Code. To qualify for a disability retirement, Federal employees must have served for a minimum amount of time (different minimum time periods, depending on the retirement system) and no longer be able to effectively perform his or her duties at the current grade or pay level without accommodation due to a medical condition that will continue for more than one year.
Disability retirement applications are processed and adjudicated by the Office of Personnel Management (OPM); the applicant may request a reconsideration of a negative first level decision by OPM as well. The Merit Systems Protection Board (MSPB, or the Board) has jurisdiction over appeals of OPM decisions. The Board set down the basics for appeals to its body in Chavez v. OPM, 6 MSPB 343 (1981). The Board is not limited to a review of the record before OPM so the proper scope of review at the MSPB is de novo. This decision also established that it is the employee who bears the burden of persuasion by a preponderance of the evidence from an adverse OPM decision.
The Court of Appeals for the Federal Circuit shifted the burden of production to the government in cases where the employee has been separated for physical inability to perform his duties and no accommodation could be made. In Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993), the court held that the employee has met his prima facie burden of proof through separation by disability (note that the employee still must establish entitlement by a preponderance of the evidence).
In the absence of the so-called “Bruner Presumption,” otherwise sick or injured workers who are on staff and perform at satisfactory levels present difficult issues for disability attorneys, or those proceeding pro se, if these injuries or diseases prevent the workers from performing one or more of the essential elements of the job descriptions and other disability criteria are met. I have been involved in cases in which late career top performers filed for disability benefits as a result of conditions that precluded them from performing certain essential elements of job descriptions but did not affect performance, conduct or attendance. The agencies did not initiate separation but could not accommodate in the positions. OPM is not accustomed to this type of application but ultimately each applicant was successful.
OPM disability applications are pursued by a full spectrum of employees - from those removed because of a condition to those continuing to perform in spite of it.
Many lawyers who regularly practice before the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB) will not accept Federal workers’ compensation cases due to the complex nature of the fee approval process and the potentially harsh sanctions imposed for violating certain procedures within the fee oversight jurisdiction of the Secretary of Labor. In addition to a somewhat arcane review process, the lawyer faces another obstacle in the form of a long-standing Employees’ Compensation Appeals Board (ECAB) opinion that hourly rates in workers’ comp cases should be lower than those for other legal services (no specific hourly rate has been enumerated, however).
A fee application submitted to the Office of Workers’ Compensation Programs (OWCP) will be reviewed by OWCP only. ECAB approves claims for attorneys fees for appearances and work performed separately before its body. OWCP fee regulations, found at 20 CFR Section 10.703, require the lawyer to submit an application to the appropriate district office or branch where the work was performed. The itemized statement submitted in support of a fee approval application must include the hourly rate, number of hours worked and it should identify the specifics of the work. The attorney must also include a statement signed by the claimant acknowledging his agreement with the amount charged and that the claimant is solely responsible for the bill. Incomplete applications are returned to sender without comment; the 1999 amendments to OWCP regulations deem fee requests automatic in the absence of a dispute between the represented individual and his lawyer.
OWCP and ECAB regulations make clear that they are independent entities and that each has separate jurisdiction over attorney fee matters submitted for work performed before the Office and the Board, respectively.
Remember, when interviewing a potential Federal OWCP attorney, make certain that any monies being deposited for services rendered are going into an escrow or client trust account until authorized for payment.
