571 F.3d 1372 (Fed. Cir. 2009), 2008-3236, Reilly v. Office of Personnel Management

Docket Nº:2008-3236.
Citation:571 F.3d 1372
Opinion Judge:DYK, Circuit Judge.
Party Name:Sylvia M. REILLY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Attorney:Brian T. Edmunds, Arnold & Porter LLP, of Washington, DC, argued for petitioner. With him on the brief was Justin S. Antonipillai. Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With...
Case Date:July 15, 2009
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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571 F.3d 1372 (Fed. Cir. 2009)

Sylvia M. REILLY, Petitioner,



No. 2008-3236.

United States Court of Appeals, Federal Circuit.

July 15, 2009

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Brian T. Edmunds, Arnold & Porter LLP, of Washington, DC, argued for petitioner. With him on the brief was Justin S. Antonipillai.

Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Earl A. Sanders, Attorney, United States Office of Personnel Management, of Washington, DC.

DYK, Circuit Judge.

Sylvia M. Reilly (" Reilly" ) petitions for review of a decision of the Merit Systems Protection Board (" Board" ) affirming the denial of petitioner's application for disability retirement. Because we hold that the Board applied an erroneous legal standard by categorically rejecting post-retirement medical evidence, we vacate and remand.


From May 26, 1984, to March 15, 2006, Reilly worked as a mail carrier in Glendale, Arizona for the United States Postal Service. Reilly's duties included driving a postal vehicle to deliver mail in rural Arizona, parts of which are frequently dusty. On March 15, 2006, Reilly resigned for " ill health." During at least the later part of her service Reilly had chronic asthma, a permanent condition that, if severe, includes potentially life-threatening attacks sometimes requiring hospitalization. Chronic asthma can be aggravated by a variety of environmental factors, including smoking, airborne dust or dirt, high temperatures, humidity, and pollutants.

During the final few years of her employment, Reilly visited her primary doctor frequently, and the doctor's notes documented regular complaints about asthma of varying severity. However, prior to her resignation Reilly apparently was not examined by a specialist for diagnosis and treatment. In the later years of her employment, Reilly sought accommodation for her asthma based on her doctor's recommendations. In August 2003, Reilly and her doctor wrote to the Postal Service about Reilly's asthma, and requested that Reilly be permitted to start work earlier in the day. Her doctor wrote that Reilly's

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asthma " has been aggravated by the exposure to the high temperatures, pollutants and humidity in the air," and requested that Reilly be permitted to start work early in the morning so that she would not be exposed " to the asthma trigger factors that occur highest between 3:00PM and 5:00PM." This request was denied.

In January 2006, Reilly and her primary doctor again wrote to the Postal Service about Reilly's asthma in a certification of leave under the Family Medical Leave Act. Her doctor certified to the Postal Service that Reilly had severe asthma, and stated that Reilly " gets sudden and random attacks of shortness of breath that can be life-threatening." Her doctor also stated that the condition is of " permanent/lifetime" duration. Her doctor stated that these attacks occur one to two times per month and result in incapacity of one to three days for each occurrence. Reilly also wrote to the Postal Service regarding her asthma, informing them that dirt in her vehicle aggravated her asthmatic condition.

On March 1, 2006, Reilly received a letter of warning from her supervisor, citing Reilly's absences and stating that Reilly was " failing to meet essential job requirements." On March 15, 2006, Reilly resigned, citing " ill health." On or about April 5, 2006, Reilly applied for disability retirement, stating that she became disabled in March 2006. Under the applicable regulations, Reilly's resignation did not bar an application for disability retirement. 5 C.F.R. § 831.1204.

With her April 5, 2006, application, Reilly listed two physicians-her primary doctor and a pulmonary specialist named Dr. Orr-as " physician(s) ... from whom you plan to request Physician's Statements" supporting the application.

Over the rest of the summer, Reilly continued to develop her application and supporting documents. In June 2006, the pulmonary specialist conducted a physical examination, finding scattered rhonchi in Reilly's lungs, and commissioned an X-ray examination which revealed scarring in the lungs and small airway disease.

In August 2006, the pulmonary specialist submitted a form to the Office of Personnel Management (" OPM" ) in support of Reilly's application for disability retirement. The specialist stated that in three visits with Reilly in June, July, and August, Reilly had shortness of breath and coughs, and that she had a history of chronic asthma. The specialist noted:

[Reilly's] asthma is an ongoing condition that can be exacerbated by outdoor elements (including dust), illness, etc. I am unable to predict when this will happen or the duration of the occurrences.... Restrictions for this patient are as follows: No riding in or operating vehicles that are dusty on the interior. The vehicle the patient operates must be clean on the interior and free of dust. This restriction is to be in place at all times and has no expiration, as asthma is a chronic condition.

Reilly's primary doctor also submitted documentation based on his examinations occurring both during the time of her employment and afterwards, concluding that Reilly had " asthma severe and chronic-lifetime duration, exacerbated by dust, dirt, and pollen, improved but not cured with medications." Reilly also submitted her own observations of her condition and its impact on her work, stating that she " was having asthma attacks often when the air quality was bad" or there was dust outside or in her vehicle, and often had to miss work. Reilly also obtained lay statements

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from coworkers and others familiar with the impact of her medical condition on her work, confirming that dust and dirt aggravated Reilly's asthma; that she was forced to rely on coworkers to complete her routes; and that she missed many work days because she was sick.

In an effort to rebut Reilly's doctors' statements and lay evidence, Reilly's supervisor for the eight months before her resignation submitted a partially completed standard form for use in disability applications, answering " no" to the question of whether Reilly's performance was " less than fully successful in any critical element of position." Asked to explain the impact of Reilly's absence on work operations, the supervisor answered " SHE QUIT." Asked whether Reilly's conduct was unsatisfactory, the supervisor cryptically answered " NO CONDITION." The supervisor did not answer any other question on the form about Reilly's medical condition or work performance. Apparently the Postal Service did not produce any other evidence about Reilly's work performance or medical condition.

On December 14, 2006, after Reilly's application and supporting statements were complete, OPM denied Reilly's application for disability retirement. OPM stated that the " supervisor did not document any service deficiencies in [Reilly's] performance, attendance or conduct. She only noted that [Reilly] quit." OPM further stated that it reviewed all of Reilly's medical documentation, and that " no medical records prior to your resignation were submitted to show that your asthma was of the severity to substantiate disabling condition prior to your resignation." On April 16, 2007, OPM denied Reilly's request for reconsideration, repeating many of the same reasons provided in its original decision.

On May 11, 2007, Reilly appealed pro se to the Board, and did not request a hearing.1 On July 24, 2007, OPM submitted a two-page expert report from Dr. Bradley, a doctor chosen by OPM to provide a medical opinion in support of OPM's decision. Dr. Bradley did not examine Reilly, but simply analyzed the medical evidence submitted by Reilly's doctors from both before and after Reilly's resignation and opined:

This woman is not disabled.... In a ten month [sic] from September 2005 to the end of June 2006, this woman had one minor episode of asthma. Documents prior to this period from 2004 did not show any evidence of asthma. Her asthma was clearly well controlled, and mild. She is not disabled. I strongly recommend denial of this application.


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