Case Information
*1 Before P ROST B RYSON , and T ARANTO , Circuit Judges. P ER URIAM .
Norman Alston, Jr. appeals from the decision of the Merit Systems Protection Board (“Board”) affirming the decision of the Office of Personnel Management (“OPM”) denying his application for disability retirement. For the reasons discussed below, we affirm.
I. B ACKGROUND
In September 2010, Mr. Alston applied to OPM for disability retirement under the Federal Employees’ Re- tirement System (“FERS”). He claimed that he was disabled by “stress and panic disorder” that prevented him from performing the duties of his job with the federal government. Resp’t App. 38. At the time of his applica- tion, Mr. Alston was a Revenue Officer for the Internal Revenue Service and responsible for “collecting delin- quent tax and securing delinquent returns from taxpay- ers.” Id. at 21.
Along with his application, Mr. Alston submitted sev- eral reports from a licensed clinical psychologist, Dr. King, to substantiate his disability. In those reports, Dr. King stated that Mr. Alston suffered from “Panic Disor- der,” was unable to “return to his position as a ‘Revenue Officer,’” should be “reassigned to an alternative position” with less stress, and experienced a reduction in symptoms after taking time off of work. Id. at 23–24.
In April 2011, OPM rejected Mr. Alston’s application for disability retirement. It determined that he had failed to provide “objective medical evidence that a disabling condition exist[ed]” and had failed to respond to its “letter requesting additional objective evidence.” Id. at 39. In its view, the reports from Dr. King did not establish that Mr. Alston’s condition warranted restrictions from performing the specific “critical or essential duties of [his] position or restriction from the workplace altogether.” Id. In its decision, OPM indicated that Mr. Alston could submit additional medical documentation to support his claim.
Mr. Alston subsequently petitioned OPM for reconsid- eration, but it denied his request in May 2012. It noted that Mr. Alston had not submitted additional medical documentation to support his claim and determined that the exiting reports from Dr. King did not provide the necessary “detailed and objective medical” evidence to “support his conclusions” regarding the effect and extent of Mr. Alston’s disability. Id. at 34.
Mr. Alston appealed OPM’s decision to the Board, which affirmed in November 2012. The administrative judge for the Board explained that, in order to qualify for disability retirement, Mr. Alston had to show that he was “unable, because of disease or injury, to render useful and efficient service in [his] position.” Id. at 19. After a detailed review of the record evidence, including Dr. King’s reports, the administrative judge agreed with OPM that Mr. Alston had failed to make such a showing by a preponderance of the evidence. The administrative judge determined that Mr. Alston did not adequately establish how his condition rendered him unable to “perform [his] specific work assignments or to be regular in attendance.” Id. at 28. That finding was based on the administrative judge’s conclusion that “[n]either [Mr. Alston] nor Dr. King addressed in any specific way how [Mr. Alston]’s condition affected his ability to perform the duties of a Revenue Officer.” Id. at 27. The administrative judge also noted that Dr. King failed to “address the degree to which [Mr. Alston]’s condition can or cannot be controlled, through medication or other treatment.” Id.
The administrative judge’s decision became final in December 2012. In February 2013, Mr. Alston filed a timely appeal with this court.
II. A NALYSIS
We have jurisdiction over Mr. Alston’s appeal under 28 U.S.C. § 1295(a)(9), but the scope of our review is limited. Generally, our review of a decision of the Board is quite narrow. We may set it aside only if: “(1) arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Because Mr. Alston’s appeal concerns the denial of his
application for disability retirement under FERS, the
scope of our review is further limited to critical errors of
law. “[T]his court is precluded by 5 U.S.C. § 8461(d) from
reviewing the factual underpinnings of physical disability
determinations, but may address whether 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.’”
Anthony v. Office of Pers. Mgmt.
, 58 F.3d
620, 626 (Fed. Cir. 1995) (reviewing a decision of the
Board affirming OPM’s denial of a request for disability
retirement under FERS) (quoting
Lindahl v. Office of
Pers. Mgmt.
,
On appeal, Mr. Alston has not shown that the Board
committed any critical legal error in denying his request
for disability retirement. Although he plainly indicated in
his informal brief that “No,” the Board did not “apply the
wrong law,” he stated as a ground for relief that “no one
ever contacted the doctor during the case.” Resp’t App. 1.
That could be construed as an assertion of critical legal
error.
See Bruner v. Office of Pers. Mgmt.
,
Mr. Alston’s only other assertion of error is a chal-
lenge to the Board’s weighing of the facts in this case,
which we may not disturb on appeal. Specifically, he
argues that the Board was “not truly considering what
mental health does to a person.” Resp’t App. 2. Clearly,
Mr. Alston believes that the Board improperly weighed
the facts in his case.
See Davis v. Office of Pers. Mgmt.
,
470 F.3d 1059, 1060–61 (Fed. Cir. 2006) (“[Petitioner’s]
theory is that the Board improperly failed to consider the
totality of the evidence . . . . [H]er arguments are, in
reality, challenges to the factual underpinnings of the
Board’s determination.”). But that dispute is outside the
scope of our review.
Anthony
,
Because Mr. Alston has not shown any legal error in the Board’s decision and we may not review the factual underpinnings of the denial of his application for disabil- ity retirement, we must affirm. [1]
AFFIRMED OSTS
Each party shall bear its own costs.
Notes
[1] Mr. Alston accompanied his initial notice of ap- peal to this court with a letter from Dr. King dated Janu- ary 14, 2013. That letter was never presented to the Board as evidence. Indeed, it was written after the ad- ministrative judge’s decision became final. Therefore, the letter is not part of the record. We note, however, that it addresses only factual matters outside our scope of re- view.