Tag Archives: Major Depression cases in the USPS

Federal & Postal Service Disability Retirement: Experience & the Medical Condition

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Often, when a client receives the finalized Federal Disability Retirement packet, I receive a response that goes something like:  “I didn’t realize I was so bad off, until I read through the prepared packet.”  While I have not personally experienced the medical conditions of my many clients over the years, I have the experience of having spoken to them, and have learned about the symptoms, the words which best describe the pain, the impact, and the symptoms which are experienced on a daily basis.

That is why it is an absurdity for the Office of Personnel Management, for example, to continually and redundantly refer to Fibromyalgia cases as ones with symptoms which “wax and wane”.  Or, with severe Major Depression, Anxiety and panic attacks, the Office of Personnel Management will systematically deny many such claims by stating that there is no “objective medical evidence” to show that the individual is unable to continue to provide efficient service in a cognitive-intensive job.

It is the job of the attorney, in a Federal Disability Retirement case, to be the one who projects the experience of the disabled Federal or Postal employee.  The FERS attorney does not have to personally experience the medical condition in order to properly and descriptively convey the impact of the symptoms and debilitating conditions; however, it is helpful if the Federal Disability Attorney has had a wide range of experience — by having spoken to multiple individuals over the years who have personally experienced such conditions.  In this way, the FERS Attorney can obtain the experience to express the medical experience of the applicant.

Sincerely,

Robert R. McGill, Esquire
OPM Disability Retirement Attorney

 

OPM Decisions of Denial in FERS Disability Retirement Cases

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It is a frightening thought that there may be a percentage of Federal or Postal Federal Disability Retirement applicants who read an initial denial from the Office of Personnel Management, and take their words at face value.

From statements such as, “Your doctor has failed to show that your condition is amenable to further treatments” (by the way, when did the Office of Personnel Management obtain a medical degree or complete a residency requirement?) to “you have not shown that you are totally disabled from performing efficient work” (hint:  this is not Social Security, and the standard is not “total disability”), to a full spectrum of error-filled statements in between, one may suspect that there may be a knowing strategy in rendering a denial, knowing that a small percentage of the corpus of disability retirement applicants will simply walk away and not file a Request for Reconsideration.

Further, I suspect that this occurs more often with certain more “vulnerable” medical conditions — Fibromyalgia, Chronic Fatigue Syndrome, Major Depression, PTSD, anxiety, panic attacks; Chemical Sensitivity cases, etc.  Why do I suspect these?  Mostly because such cases are attacked for “lacking objective medical evidence” (see my articles on Vanieken-Ryals v. OPM, and similar writings) and failing to provide “diagnostic test results”, etc.

There was a time, long ago, when it used to mean something when someone said, “The Government says…”  In this day and age, I would advise that you take it to an attorney to review whether or not the words of the Office of Personnel Management are true or not.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

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I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

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

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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

OPM Disability Retirement: Quality versus Quantity

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While most Federal Disability Retirement applicants whom I represent, and have represented, retain me at the initial stage of the application, a good many of my clients come to me at the Second (Reconsideration) and Third (Merit Systems Protection Board) Stages of the process.  I find that the vast majority of the individuals who attempted to put his or her disability retirement packet together, and got it denied at the first level, attempted to simply overpower the Office of Personnel Management with a voluminous compendium of medical records.

Wrong move.  Always place quality over quantity.

Streamlining a case is often the key to winning a disability retirement case.  This is just as true for cases involving Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, etc.  Because such medical conditions are often thought of as “not quite” legitimate conditions, applicants often make the mistake of thinking that by overloading the Office of Personnel Management with a thick, unwieldy file of medical records, that the sheer weight of the records will convince OPM that it is a “legitimate” case.

Wrong move.  Don’t be defensive.

Such conditions as Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, Bi-polar Disorder, panic attacks, Generalized Anxiety Disorder — they are all legitimate basis for disability retirement.  Such medical conditions need not be apologized for.  Such conditions need not be “defensively” or “apologetically” submitted.  They are legitimate conditions to file; they just need to be submitted in the proper manner — by having a strong, streamlined, and cohesive medical narrative, properly prepared by the doctor, under the guidance of a Federal Disability Retirement attorney.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Disability Retirement: Thoughts on Specific Disabilities

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There is a view that is often proposed that, for certain medical conditions or disabilities, that a different “approach” needs to be undertaken.  Thus, by way of example, certain medical conditions such as (to name just a few, and of course, the list is by no means intended to be exhaustive) Fibromyalgia, Chronic Fatigue Syndrome (CFS), various forms of Multiple Chemical/Environmental Sensitivity cases, and even psychiatric conditions such as Bi-polar Disorder, Generalized Anxiety, etc. — are often thought to be somehow in a “different” category from (again, by way of example) more “traditional” medical conditions such as Multiple Sclerosis, Lupus, Shoulder Impingement Syndrome, Osteoarthritis, degenerative disc disease, herniated discs (cervical or lumbar), Torn ACL, Failed Back Syndrome, etc.

Thus, the question sometimes posed is:  should the former types of medical conditions somehow be treated “differently” than the latter, more traditional types of medical conditions?  My answer is, generally, “No”.

First, each individual case must be treated based upon the uniqueness of the particular case.  Second, to file a disability retirement application “differently” because you fear that OPM may not accept your particular kind of medical condition approaches the entire process in a defensive, almost defeatist manner.  Third, because Federal Disability Retirement is based upon the symptoms which are manifested, as opposed to a “category” of a medical condition, and further, how those symptoms and manifested symptomatologies impact the essential elements of one’s job, it is the emphasis upon the nexus between the symptoms and the core elements of the job which should always be emphasized, and not what your medical condition is “called” or “named” as.

Thus, as a general point of legal approach, I prepare all of my clients’ disability retirement applications in a similar vein:  that, regardless of what condition you have been diagnosed with, the symptoms exhibited and clinically identified by your treating doctor impact your ability to perform the essential elements of your job.  This is the best approach to take in all cases.

Sincerely,

Robert R. McGill, Esquire

FERS Medical Retirement: Psychiatric Disabilities

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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

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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

Important cases which impact disability retirement applications

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The recent case of Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, cannot be overemphasized for its importance to the disability retirement process. It is, in my view, a landmark case which will greatly advance potential disability retirement applicants who base their disabilities upon psychiatric conditions. In representing my clients, I have repeatedly argued that the Office of Personnel Management’s insistence upon “objective medical evidence”, especially when it involves clients who suffer from psychiatric medical conditions (e.g., Major Depression, Anxiety, panic attacks, Bi-Polar Disorder, etc.) is not only unfair, but irrational. My past arguments were met with varying degrees of success, but the essential argument that I made over the years went something like this: Psychiatric disabilities by their inherent nature are “subjective”, because there is no diagnostic test which can objectively determine symptoms of psychiatric disabilities. Indeed, while there are multiple psychological tests which can be administered, the results are still based upon the subjective responses of the patient. Furthermore, a doctor’s clinical examination, long-term evaluation by a treating doctor, and the consistent assessment by one’s treating doctor, provide for the best and most ‘objective’ basis for a valid medical opinion. Further (my argument would often go), even physical disabilities (like a bulging disc) which can be ascertained by an MRI, cannot provide a conclusive basis to determine the extent of one’s pain or inability to perform certain tasks, for pain is by definition a “subjective” condition; there are, indeed, some who have bulging discs but have very little pain, and others who have a minimal bulging disc which completely debilitates the individual. These were rational arguments made, and while fairly persuasive when combined with case-law citations, the force of such arguments often depended upon the receptiveness of OPM’s representative or, at the Merit Systems Protection Board level, the receptiveness of the Administrative Judge.

With the opinion expressed by the Court in Vanieken-Ryals v. OPM, we no longer need to rely upon the arbitrary receptiveness of an individual, for we have a firm legal basis to counter the irrational basis that OPM routinely gives in their denials based upon an objective/subjective distinction.

The Court in Vanieken-Ryals made several important declarations in their opinion:

1. 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”, especially when the application is based upon psychiatric medical conditions. This, because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability.

2. 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.

3. 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.”

Ultimately, for purposes of this article, which is (hopefully) read by many non-lawyers, the essence of the Vanieken-Ryals case is that it exponentially strengthens a disability retirement application based solely upon psychiatric medical disabilities. The case itself contains many other elements which provide for strong ammunition, when used wisely and with knowledge, for the disability retirement practitioner of law. It makes a strong and unequivocal statement that OPM’s and MSPB’s adherence to a rule which systematically demands for “objective” medical evidence and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.” This is indeed strong language which can be used as a sword to prevail in a disability retirement case.

Persistence in the pursuit of a client’s right and entitlement to disability retirement benefits is never a lost cause, and those who have hesitated from filing for disability retirement because they suffer from purely psychiatric medical disabilities, or from disabilities which are often harder to “objectively” justify (e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.) have a greater chance because of the bold legal opinion as expressed by the Court in Vanieken-Ryals.

This is a landmark case of incalculable importance and impact, which cannot be overemphasized. I have already cited the case on numerous occasions at the MSPB level, and the fact that it is a Court of Appeals decision makes it binding upon all MSPB judges. It gives greater hope for those who suffer from Psychiatric Disabilities alone, that their cases will not somehow be looked upon with less chance of approval than a person with a physical medical condition.


Other case updates: While Vanieken-Ryals was not a case that I represented, there are some case-updates from my own files which may be of some interest to my readers. All information provided is already in the public record of the written Opinion of the Judges, and there is no information revealed here that violates my attorney-client confidentiality. I wish that I could claim that I win all of my cases; I cannot. However, it is my firm belief that persistence in the pursuit of a client’s disability retirement application is never a lost cause, and here are three cases which reinforce my philosophy:

1. Tucker v. OPM (DA-844E-07-0314-I-1) The Office of Personnel Management kept denying Ms. Tucker’s disability retirement application. This case was finally won at the Hearing level. However, the Office of Personnel Management filed a Petition for Review. I responded with — among other arguments — the fact that the Office of Personnel Management failed to make any legal arguments showing that the Hearing Judge committed any legal errors. The Full Board rejected OPM’s Petition and affirmed the decision in my favor. No further appeals have been filed. I am happy for my client that after so many years, she will now get her disability retirement. Persistence in rebutting OPM’s attempt to reverse a Hearing Judge’s decision is never a lost cause.

2. Hartsock-Shaw v. OPM (PH-844E-06-0658-I-1) This one is the converse of the previous one, in that the Hearing Judge initially affirmed OPM’s denial of my client’s disability retirement application. I filed a Petition for Review, because I believed the Judge was wrong in not applying the Bruner Presumption in this case. The Full Board vacated the Initial Decision and Remanded the case back to the Hearing Judge, requiring further testimony on the issue of whether the Bruner Presumption should have been applied. We were able to factually prove that the circumstantial evidence necessitated the finding that my client was removed for her medical inability to perform her job, even though there was no final letter of removal issued by the Postal Service that we could find. The Judge sided with us, reversed her prior decision, and granted my client her disability retirement benefits. Persistence paid, and persistence in the pursuit of a disability retirement claim is never a lost cause.

3. Heiter v. OPM (AT-0831-07-0435-I-1) This is an interesting case. It has to do with a client who lost his disability retirement benefits because he tried to go to work for Federal Express. He was being punished for trying. One would think that a disability retirement annuitant would be commended and praised for trying — but, no, because he applied for, got the job with, and then quit, a job with Federal Express, he was deemed to have been ‘less than honest’ for having retired on disability from a Postal Job, and therefore OPM cut off his disability retirement benefits. We went to Hearing on the matter; the doctor testified unequivocally that he couldn’t do the job — neither the Federal Express one nor his prior Postal job — but he couldn’t fault his patient for having tried. OPM made a big deal about the fact that my client periodically went bowling. The Judge ruled in OPM’s favor. I filed a Petition for Full Review. The Board reversed the Initial Decision, and reinstated my client’s disability retirement annuity.

Here again, persistence pays, and persistence in pursuit of a disability claim is never a lost cause.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. In pursuing one‘s entitlement to disability retirement benefits, one must always take the long-term perspective, and pursue that right with aggressiveness and persistence. It is an investment for one‘s future, and it is important to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways:

Sincerely,


Robert R. McGill, Esquire