Federal Disability Lawyer & Attorney : Jeffery P. McLane Law Firm : Philadelphia, Pennsylvania PA

     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.

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     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.

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• OPM Disability Retirement Matters
• SSDI/SSI 
• Federal Disciplinary Matters
• Catch-62 Appeals
• Whistleblower Representation
• EEO Complaints
• Criminal Defense

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