Federal and Postal Service Disability Retirement: Psychiatric Disabilities & the Holidays

Thanksgiving, Christmas, New Years & the Holidays; psychiatric disabilities of Major Depression, Anxiety, panic attacks, and many others; the mixture of the two often create an admixture of conflicting emotions, enhancing and exacerbating the psychiatric disabilities.

Unfortunately, the “Holidays” are a time when stresses and anxieties are further exacerbated; we are all meant to be “happy” and in the “holiday spirit”, when in fact the gathering of friends, family and gift-giving exponentially emphasizes the medical conditions which people suffer from, especially psychiatric conditions.

For Federal and Postal employees considering filing for Federal Disability Retirement under FERS or CSRS, the “Holidays” should be a time of rest and reflection; to determine the course for the future; whether the future holds continuation of a long and productive career, and will it continue until the time of regular retirement, or is this the time to consider filing for Federal Disability Retirement.

The “long-term view” must be taken; not to make a hasty decision because of the exacerbating circumstances of the Holidays; rather, to see beyond the holidays, and make the proper decision based upon an “objective perspective” of the “now”, as well as of the future.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: the Spouse

I find that when a person is filing for Federal Disability Retirement benefits under FERS or CSRS, an important component which is often overlooked is the supportive spouse.  I often get calls concerning various aspects of the Disability Retirement process — not from the applicant, but from the spouse.  And, indeed, this is natural, because often the medical condition itself is serious enough that the applicant is unable to “handle” or “deal with” the complexities of the process itself.  It becomes further complicated when the medical condition which is suffered is a psychiatric condition — severe Major Depression, anxiety, panic attacks, suicidal ideations, etc. 

However, whether it is psychiatric or physical, a supportive spouse — or “significant other” — is often very, very important to the success of the entire process.  Obviously, as an attorney who represents “the Client”, I must be careful that there is never a conflict between the Applicant (my client) and “the spouse”, but that is rare.  In almost all cases, I find that the spouse is looking after the best interest of my client, and I am happy to talk to and update the spouse on any and all issues surrounding disability retirement issues, because I know that he/she is looking after the best interests of my client, just as I want to.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s disability retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. As long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with ‘generally accepted professional standards'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB.

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, as long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with generally accepted professional standards,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.

As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Are Psychiatric Disabilities Denied More Readily?

I am often asked whether or not it is more difficult to get disability retirement benefits under FERS or CSRS based upon a psychiatric medical condition (e.g., PTSD, Major Depression, Anxiety, panic attacks, Bipolar Disorder, etc.).  Does the Office of Personnel Management deny a disability retirement application which is based solely upon a psychiatric condition?   Should a FERS or CSRS disability retirement application always include a physical condition? The short and simple answer is an unequivocal “No”.

Let me provide a slightly more expanded answer:  (1)  In my experience, psychiatric disabilities present no greater obstacles than physical disabilities.  So long as we can prove, by a preponderance of the evidence, that the medical condition — physical or psychiatric — prevents one from performing the essential elements of one’s job, there really is no difference between the two.  (2)  Do not “add” a physical disability because you think that a psychiatric disability is “not enough”.  This would be a foolish approach.  Focus upon the primary medical conditions, whether physical or psychiatric, in proving your case.  (3)  Remember that disability retirement often has other complex factors which come into play — accommodation issues; certain jobs are more easily shown to be “incompatible” with a psychiatric disability (for instance, Law Enforcement Personnel who have psychiatric disabilities obviously must have the mental acuity to perform the inherently dangerous aspects of the position); and remember that psychotropic medications, prescribed and necessary for daily functioning, often have side-effects which impact one’s ability to perform one’s job.

The point in all of this is that there really is no substantive difference between psychiatric disabilities and physical ones, anymore; the societal stigma of “psychiatric medical conditions” has largely disappeared, and the Office of Personnel Management — in my experience — treats both psychiatric disabilities and physical disabilities on an equal par.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: Psychiatric Disabilities

I am often asked, on an initial interview/consultation of a potential client, whether or not psychiatric medical disabilities (Major Depression, Generalized Anxiety Disorder, PTSD, panic attacks, Bi-polar disorder, etc.) are “more difficult” to prove than physical disabilities. This question is similar, of course, to the question often asked of certain other kinds of disabilities, like Fibromyalgia, chronic fatigue syndrome, Irritable Bowel Syndrome, and other similar (often designated as “auto-immune” disabilities) medical conditions.

In my experience, there is no single generic answer to the question of whether or not a particular medical disability is “more difficult” to prove than another. In my experience, I have gotten approved an application for Major Depression based upon a single-page note from a Psychiatrist; on the converse/inverse experience, I have had cases rejected at the First Stage of the process (but, fortunately, had the same cases approved at the Second, Reconsideration Stage) showing chronic, failed-back syndrome cases where prior surgical discectomies, multiple diagnostic MRIs showing incontrovertible basis for severe and radiating pain, and multiple specialists verifying the client’s clear and irrefutable inability to perform the essential elements of his/her job. In preparing a Federal disability retirement retirement application, my many years of experience has taught me a number of elementary & foundational lessons: First, a clear and concise presentation of providing a direct nexus between the particular medical condition and the type of job that the Federal/Postal employeee performs, is very important; Second, it is very rarely the volume of records which is convincing; rather, it is the quality of the medical report which is paramount; and Third, it often depends upon which OPM Disability Specialist it is assigned to, which sometimes “makes the difference” between approval and denial.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Situational Disability II

To reiterate: Situational disability can be an issue which can defeat a disability retirement application, precisely because OPM (and if it gets to the MSPB level, the Administrative Judge) can conclude that the Psychiatric disability in question originates and results in response to the hostile workplace environment.

These three concepts are important to understand — originate, result in, and result “in response to”. A psychiatric condition can originate from a hostile work environment, but as long as the medical condition then pervades beyond the work environment and impacts a person’s life through and through, then that alone does not constitute situational disability, because while it may have originated from A, it is not limited to A.

The second concept — results in — must be seen in the context of the condition of the psychiatric disability. Thus, does the (for example) Major Depression or anxiety result solely from the work environment, or does one experience the symptoms while at home, even while away from the work environment?

And thirdly, does the individual experience the symptoms of the psychiatric condition “in response to” his or her exposure to the work environment, or are the symptoms all-pervasive: i.e., throughout all aspects of the person’s life?

To differentiate these three concepts is important in avoiding the pitfalls of situational disability, and in helping to prepare a Psychiatrist in either preparing a medical narrative report, or in his or her testimony before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire