Federal Disability Retirement: Those Chronic Medical Conditions

Often, in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there is the concern that because a particular medical condition has had a “chronic” nature to it (whatever the particular diagnosis is, to include Chronic Fatigue Syndrome, Failed Back Syndrome, Fibromyalgia, Chronic Pain, etc.), that somehow it will impact the chances of being approved for Federal Disability Retirement benefits under FERS or CSRS.  

The argument and concern goes somewhat as follows:  X Federal or Postal employee has been able to work for Y number of years for the Agency or the U.S. Postal Service; the medical condition has not prevented the Federal or Postal employee from performing the essential elements of the job all these years, because the Federal or Postal employee has simply endured the chronic nature of the pain; therefore, the medical condition (it is feared) cannot be cited as a basis for an approval from the Office of Personnel Management.  

However, the mere rationale that a particular medical condition is chronic, inherently or otherwise, is not a basis for being concerned about a denial.  The fact is that a particular Federal or Postal employee was able to perform the essential elements of his or particular job for many years; the chronicity of the medical condition is often the case; but at some point, the constant, chronic pain comes to a point where the Federal or Postal employee is no longer able to physically, emotionally or mentally tolerate the extent, duration and severity of the pain.  At such a critical point, it is time to file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Psychiatric v. Physical Disabilities

People continually inquire as to the difference between Psychiatric v. Physical disabilities, as to whether one is more amenable to an approval over the other.  Psychiatric conditions can include a wide range of variables — from Bipolar Disorder, Schizophrenia, Obsessive-Compulsive Disorder, Major Depression, Anxiety, panic attacks, Agoraphobia, ADD/ADHD, and multiple other diagnoses.  Physical medical conditions, also, include a wide spectrum of disorders — Cervical, Thoracic or Lumbar conditions; various cardiac conditions; Carpal Tunnel Syndrome; Fibromyalgia; Chronic Fatigue Syndrome; Shoulder Impingement Syndrome; Plantar Fasciitis; Migraine headaches; Lupus; Chemical Sensitivity issues; allergies; COPD; and multiple other conditions.  Is there a difference between these (and the listed conditions are by no means meant to be exhaustive, but merely illustrative of the wide range of medical conditions)?  The answer is, ultimately, No. 

The foundational essence of a Federal Disability Retirement case, whether involving Psychiatric disabilities or Physical disabilities, is the impact upon one’s ability to continue to perform all of the essential elements of one’s job.  Further, recent case law holds that OPM cannot make a distinction between “objective” medical evidence as opposed to “subjective” medical evidence, and so the old distinction between “psychological” medical conditions as distinguished from “physical” medical conditions can no longer be seriously upheld.  Ultimately, and fortunately, there is no difference between psychiatric disabilities and physical disabilities when trying to get approved for a Federal Disability Retirement case under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

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

Often, when a client receives the finalized 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 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 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 attorney can obtain the experience to express the medical experience of the applicant.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: OPM's Words

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 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

CSRS & FERS Disability Retirement: Thoughts on Specific Disabilities

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

Summary Legal Update for FERS & CSRS Disability Retirement

On my website, Federal Disability Retirement Lawyer, I give a more extensive explanation of a recent and important case impacting federal disability retirement applications, but I think that it is important for everyone filing, or contemplating filing, for disability retirement under FERS or CSRS, to be aware of the recent United States Court of Appeals case for the Federal Circuit, Vanieken-Ryals v. OPM, #2006-3260, decided on November 26, 2007, in which it was found that OPM’s adherence to the rule that they will refuse to “consider such medical evidence…for being ‘purely subjective’ is a critical legal error…and clearly prejudicial.”

Often, in cases involving cognitive impairment, psychiatric disabilities, disabilities involving diffuse and chronic pain, and those conditions such as Fibromyalgia, Chronic Fatigue, etc. the Federal Circuit Court in Vanieken-Ryals has essentially held that OPM’s adherence to “objective evidence” is “unsupported in the law, was arbitrary, capricious and contrary to law.”

The Judge therein stated that OPM must consider the medical evidence that is submitted, and cannot attack a medical condition unless there is a doubt as to the “credentials or veracity [of the doctor],” and this is especially true where the doctor has “utilized established diagnostic criteria and [is] consistent with ‘generally accepted professional standards’ ” of medical practice.

This is an important case for Federal disability retirement applicants to use when filing for psychiatric medical disabilities, and for those “hard to define” cases (again, e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.), because OPM will often declare as a basis for denial that the applicant lacked “objective medical evidence” or that there was no “objective diagnostic tests” showing the medical condition. This is, to use a very well-know legal term, now considered “baloney”. As long as the doctor has applied established diagnostic criteria and generally accepted professional standards, unless OPM can attack the credentials of the doctor, they must consider the medical evidence.

Sincerely,

Robert R. McGill, Esquire