[00:00:00] Speaker 04:
I've nine little John versus OPM

[00:00:31] Speaker 04:
Mr. Reed, please proceed.

[00:00:33] Speaker 02:
Thank you, Your Honor.

[00:00:40] Speaker 02:
Good morning, Your Honors.

[00:00:41] Speaker 02:
My name is Daniel Reed.

[00:00:42] Speaker 02:
I'm from Durham, North Carolina.

[00:00:44] Speaker 02:
And I'm here representing Kim Littlejohn.

[00:00:46] Speaker 02:
Thank you for hearing me out.

[00:00:47] Speaker 02:
It may please the Court.

[00:00:48] Speaker 02:
There are three basic points I would like to make this morning, the first of which is that this is the kind of case that this Court has already said disturbs it in the Booner case.

[00:00:57] Speaker 01:
Aren't you really challenging

[00:00:59] Speaker 01:
MSPB's factual determination of whether she's disabled.

[00:01:04] Speaker 02:
Well, ultimately, that is a factual determination, Your Honor.

[00:01:07] Speaker 02:
And so, yes.

[00:01:08] Speaker 02:
I mean, obviously, that's true.

[00:01:10] Speaker 02:
I think this court said in the Van Aiken case that we cited length that this court has to read the record carefully and discerningly and look to make... How many thousand pounds did she lift in that week of observation?

[00:01:25] Speaker 02:
Did you look at the video?

[00:01:27] Speaker 02:
No.

[00:01:27] Speaker 02:
Okay.

[00:01:28] Speaker 02:
If you looked at the video,

[00:01:29] Speaker 02:
Uh, you showed when she's on the exercise machine, it's on the smallest bar, the 10 pound bar.

[00:01:35] Speaker 02:
And her doctor had told her she needed to condition herself and she was ever going to return to work.

[00:01:40] Speaker 02:
Uh, so, uh, I think the, the court is absolutely correct that, that the factual determination is at issue, but I think the, the record as a whole is- You're arguing against the weight of the evidence.

[00:01:53] Speaker 01:
That's, that's what this is really about.

[00:01:55] Speaker 02:
I wouldn't be here if I didn't disagree with that assertion, Your Honor.

[00:02:03] Speaker 02:
Both the trial judge and the board basically dismissed vast swaths of evidence as being subjective.

[00:02:15] Speaker 02:
And I've spoken to many doctors during my career, and most of them will tell you that probably 95% of medicine is, in fact, subjective.

[00:02:25] Speaker 02:
All the doctors agreed that she has fibromyalgia, Dr. Latimer.

[00:02:31] Speaker 04:
I can read the board's decision as refusing to consider subjective evidence.

[00:02:36] Speaker 04:
I read them as weighing the evidence and finding some more credible and substantial than other evidence.

[00:02:42] Speaker 04:
But unlike Viking vials, I didn't see a determination by the board that it would not consider subjective evidence.

[00:02:51] Speaker 02:
They did not say that outright.

[00:02:52] Speaker 02:
That is correct.

[00:02:53] Speaker 04:
And in fact, they went through all the evidence and discussed it.

[00:02:56] Speaker 04:
And they explained why they came to their conclusion.

[00:02:58] Speaker 04:
So I guess the concern is, I understood you to be basically agreeing with Judge Wallach that really, at heart, your decision is challenging the weight of the evidence or the boy's weight of the evidence.

[00:03:10] Speaker 04:
But unlike most MSPB appeals where we get to review that, we have a limited jurisdiction in this case.

[00:03:17] Speaker 02:
Yes, Your Honor.

[00:03:19] Speaker 04:
That's my concern.

[00:03:20] Speaker 02:
Well, and the government correctly pointed that out.

[00:03:23] Speaker 02:
But I would submit to the court that the MSPB, having read the case law, realized we can't just say we're going to ignore this evidence.

[00:03:34] Speaker 02:
We have to say we weighed it, and we found it wanting.

[00:03:38] Speaker 02:
And essentially, they repeatedly said that there is no objective evidence to support her subjective complaints.

[00:03:48] Speaker 02:
That's been making riles right on.

[00:03:51] Speaker 02:
And Dr. Latimer, in the report the government cites, said, JA 124, there's no way to test for fibromyalgia.

[00:04:03] Speaker 02:
And it's going to be subjective.

[00:04:05] Speaker 01:
They didn't say that.

[00:04:06] Speaker 02:
They said they gave little weight.

[00:04:08] Speaker 02:
They didn't say.

[00:04:08] Speaker 02:
Well, that's what Dr. Latimer said, Your Honor.

[00:04:11] Speaker 02:
I understand what the MSPD said, yes.

[00:04:14] Speaker 01:
Yeah, the MSPB says the administrative judge gave little weight to the complaints.

[00:04:20] Speaker 01:
It doesn't say no weight.

[00:04:23] Speaker 02:
All right.

[00:04:24] Speaker 02:
Yes, I believe you're correct about that.

[00:04:27] Speaker 02:
I am.

[00:04:32] Speaker 02:
Well, I would submit to you that the treating physician confirms she may have the diagnostic

[00:04:41] Speaker 02:
criteria, and the government's own expert, Dr. Mulcahy, said that because of objective findings that she did have in 2012, she couldn't return to the job that she was assigned to.

[00:04:54] Speaker 02:
The point here is not that, as in any OPM appeal, it's not that she's totally disabled.

[00:05:00] Speaker 02:
It's whether or not she can return to the job she was assigned to at the time that she last worked.

[00:05:08] Speaker 02:
The policy ground here, which I think is the Brunner case addressed, was that the employee has successfully challenged the removal from her position and been told by the arbitrator, the post office, get her some work she can do.

[00:05:27] Speaker 02:
And instead of doing that, they said, you've been away too long.

[00:05:32] Speaker 02:
There's nothing we can do.

[00:05:34] Speaker 02:
And Judge Mayring in her decision, I think it's Collor's her decision,

[00:05:39] Speaker 02:
She says that Ms.

[00:05:40] Speaker 02:
Littlejohn has not asserted she ever attempted to return to work.

[00:05:44] Speaker 02:
Well, she can't until they tell her to come back.

[00:05:47] Speaker 02:
So Congress has set up a system, and the unions have negotiated these contracts so that when the post office gets told to put the person back to work, they give them a report, they say, come back to work.

[00:06:01] Speaker 02:
That's all they had to do if they really thought she wasn't going to come back to work.

[00:06:06] Speaker 02:
I think the court can take judicial notice if the post office often says, when they're trying to cut off somebody's worker's comp benefits, we can accommodate any disability short of bed rest.

[00:06:16] Speaker 02:
Except Mrs. Littlejohn, they were told by the arbitrator to put her back to work.

[00:06:20] Speaker 02:
They said, we can't do it.

[00:06:22] Speaker 02:
There's no accommodation we can make.

[00:06:24] Speaker 02:
That was what disturbed the court in Brunner, and I think that's what should disturb this court in this case, that essentially the employing agency

[00:06:35] Speaker 02:
can ignore its responsibility, which is established by law and by Congress and by its contracts with the unions, and ignore their obligation to employ an employee who has medical problems.

[00:06:53] Speaker 02:
She may not want to work.

[00:06:55] Speaker 02:
She may be exaggerating her symptoms.

[00:06:59] Speaker 02:
Millions of people hate their jobs.

[00:07:01] Speaker 02:
They go to work every day.

[00:07:03] Speaker 02:
Miss Little John went to New York, had the hearing,

[00:07:05] Speaker 02:
One, told to come back and nope, can't do it.

[00:07:10] Speaker 01:
So.

[00:07:10] Speaker 01:
Yeah, they can't do it.

[00:07:11] Speaker 01:
The nope can't do it was citing 11 years of absence from work.

[00:07:19] Speaker 01:
Yes, Your Honor.

[00:07:21] Speaker 04:
And that's not what's even before us.

[00:07:24] Speaker 04:
I mean, I'm not here to decide whether or not the PTO, the post office was wrong in not finding an accommodation for her.

[00:07:35] Speaker 04:
I'm trying to decide whether or not MSPB or OPM was correct, and MSPB's affirmance of them was correct in denial of her application for disability retirement.

[00:07:47] Speaker 04:
That's what this is about, right?

[00:07:48] Speaker 04:
Whether or not she should have been denied an application for disability retirement.

[00:07:53] Speaker 02:
Well, if you focus strictly on evidence of disability, Your Honor, and you consider it's in a vacuum with respect to other than that, and you have an opinion of a doctor that says there are no objective findings, which is Dr. Latimer, then you are probably correct, if that's all you do.

[00:08:14] Speaker 03:
That's the question I was just going to ask.

[00:08:17] Speaker 03:
What exactly is our role in this setting?

[00:08:21] Speaker 03:
You've discussed the Postal Service's saying they would not be prepared to accommodate her, but is that pertinent to the question of whether she is disabled?

[00:08:35] Speaker 03:
And if it is, in what way is it pertinent to the question that's immediately before us, as Judge Moore expressed?

[00:08:42] Speaker 02:
Well, she has to have a disability, and she has to not be able to be accommodated.

[00:08:48] Speaker 02:
So as I just said, if you focus strictly on whether or not she has a disability, then it's not really that relevant.

[00:08:56] Speaker 02:
Because if you say she does not have a disability, you never reach the question of whether or not she can be accommodated.

[00:09:04] Speaker 03:
But is there it?

[00:09:06] Speaker 03:
Would the two issues in effect intersect if in fact she has a disability that would prevent her from coming back in full service but would not prevent her from coming back in a light duty type service?

[00:09:23] Speaker 03:
That is to say she would not be disabled to perform light duty if that were available.

[00:09:30] Speaker 02:
Yeah, I agree with that.

[00:09:32] Speaker 02:
That's my argument, that essentially.

[00:09:34] Speaker 03:
But do you have, I mean, that's why I guess I'm asking, is the question before us whether she is disabled for purposes of performing any duty or disabled for performing full duty of her prior position, or would it be sufficient that she is able and willing to perform light duty?

[00:09:56] Speaker 02:
Well, I think the question for disability retirement, is she able to perform

[00:10:00] Speaker 02:
the duties of her last regularly assigned position, which the job description, the only job description is an arduous position that requires constant lifting and servicing the machinery.

[00:10:10] Speaker 03:
Well, that's why I'm not understanding.

[00:10:12] Speaker 03:
If you're saying that's enough to mean she's disabled, then I guess the issue of light duty doesn't have anything to do with the question of disability, right?

[00:10:22] Speaker 02:
Well, if we win that issue, then we also have to win the second issue, which is whether she could be accommodated.

[00:10:28] Speaker 02:
So I think it is relevant in that respect, Your Honor.

[00:10:31] Speaker 01:
But getting back to... Isn't your core problem that as the MSPD said, the administrative judge had a chance to observe the demeanor of the witnesses and made a credibility determination as to the witness and as to the account and to her witness or sister.

[00:10:56] Speaker 01:
And one of the things that was cited was a surveillance which showed the appellant driving to her physician's office and then telling her physician that she was unable to drive.

[00:11:13] Speaker 01:
Isn't that correct?

[00:11:15] Speaker 02:
Well, I don't believe the surveillance did that, but the physician put that in his report.

[00:11:20] Speaker 01:
Yes, Your Honor.

[00:11:23] Speaker 01:
evidence is certainly sufficient to support the administrative judge's determination of lack of credibility, isn't it?

[00:11:31] Speaker 02:
It does undermine her credibility, and I believe both the board and the judge should say that, yes.

[00:11:35] Speaker 02:
But every doctor says she has fibromyalgia, including Dr. Latimer and Dr. Mulcahy.

[00:11:43] Speaker 02:
They take that for granted.

[00:11:45] Speaker 02:
That's subjective.

[00:11:45] Speaker 02:
And Dr. Mulcahy says, objectively, she can't go back to doing the work she was doing before.

[00:11:54] Speaker 04:
That's a disability.

[00:11:55] Speaker 04:
You said every doctor said she's disabled.

[00:11:59] Speaker 04:
Didn't Dr. Latimer change his evaluation of her after being shown the video of her driving?

[00:12:06] Speaker 02:
He did.

[00:12:06] Speaker 02:
Yes, Your Honor, but I believe I said every doctor says she has fibromyalgia, which is different.

[00:12:11] Speaker 02:
And Dr. Mokhe did say that, objectively, she can't go back to that job.

[00:12:18] Speaker 02:
That is a disability, Judge Bryson, under the act.

[00:12:23] Speaker 02:
It would be our contention that simply saying that, one, that we have considered all this evidence when, in fact, if you read it carefully, they routinely and totally dismiss all this objective evidence.

[00:12:44] Speaker 02:
And I think just as importantly, they ignore what Dr. Mulgay said about returning to this job.

[00:12:52] Speaker 02:
And I think that establishes at least a disability to do the arduous task of being a postal distribution clerk, which is the only job at issue.

[00:13:03] Speaker 02:
Like I said, it would be a whole different case if the post office had said, OK, we lose.

[00:13:08] Speaker 02:
Report to work in Brooklyn from North Carolina on January 5, 2015.

[00:13:15] Speaker 02:
Let me see if she shows up.

[00:13:17] Speaker 02:
That's all they had to do.

[00:13:19] Speaker 03:
What is your understanding of the scope of our review powers under Lindahl?

[00:13:31] Speaker 03:
We've talked about it a bit before, but I really want to get a sense of what is the limit on what we can do.

[00:13:38] Speaker 03:
What must you

[00:13:39] Speaker 03:
What is our avenue for gratitude for you?

[00:13:43] Speaker 03:
I think we know that we can't say we think the board's weighing of the evidence was improper, right?

[00:13:51] Speaker 03:
That certainly seems to be disclosed by no doubt.

[00:13:54] Speaker 02:
Well, I think the court said that we must be discerning and cannot be satisfied by opinions that invoke the trappings of factual analysis.

[00:14:05] Speaker 02:
So you have to read the record as a whole

[00:14:07] Speaker 02:
carefully and make sure when the board when the MSPB and the judge say we did consider this stuff that they did in fact consider it in the whole context of the case which I would submit to you they the whole context of the case indicates saying that she she was surveilled and she was doing stuff she said she couldn't do therefore we shouldn't believe her and therefore everything is rejected goes out the window even though every doctor agrees that it's there

[00:14:44] Speaker 00:
May I please the court?

[00:14:45] Speaker 00:
As the court has noted, the court's jurisdiction to review disability retirement applications is limited.

[00:14:52] Speaker 00:
Factual findings regarding disability cannot be revisited by this court.

[00:14:56] Speaker 00:
The jurisdiction is limited to questions of law and whether there has been a substantial departure from an important procedural right.

[00:15:04] Speaker 00:
Here, although Ms.

[00:15:05] Speaker 00:
Littlejohn has attempted to frame this case as

[00:15:09] Speaker 00:
analogous to the Vinayak and Riales case, scrutiny of her argument of the board's opinion here and the ALJ's opinion here as compared to what happened in Vinayak and Riales shows that the board did weigh all of the evidence.

[00:15:25] Speaker 00:
And while there was evidence that it gave little weight to, there was not a categorical disqualification of evidence.

[00:15:33] Speaker 00:
Because of that, the majority of the arguments presented by Ms.

[00:15:36] Speaker 00:
Littlejohn are simply outside of the scope of this court.

[00:15:39] Speaker 00:
jurisdiction.

[00:15:42] Speaker 00:
Ms.

[00:15:43] Speaker 00:
Littlejohn did raise one other argument which very briefly in her brief, which we would note, may invoke this jurisdiction where she queried if the board had applied the incorrect legal standard, putting the burden of proof on the accommodation element.

[00:16:01] Speaker 00:
The burden is, however, on the petitioner to prove all elements, including both disability

[00:16:08] Speaker 00:
and accommodation and as petitioner has acknowledged today the accommodation element would really only come into play once a disability has been established.

[00:16:18] Speaker 00:
If the court has no further questions we rest on the arguments made in our briefs and today and ask that the board's decision be affirmed.

[00:16:27] Speaker 03:
Let me ask you the same question.

[00:16:28] Speaker 03:
I do have one question.

[00:16:30] Speaker 03:
I have found, over the years, the Lindahl test to be a little elusive.

[00:16:39] Speaker 03:
Can you give me your take on what it is that Lindahl says we can and can't do, with an eye on Vatican Riles, for example, as a case in which we decided Lindahl did not foreclose review?

[00:16:53] Speaker 00:
What this court can do is examine whether there was a legal error.

[00:16:58] Speaker 00:
When the board is reviewing evidence, if it makes a categorical determination, as it did in Vanikin, that it needs not consider any medical evidence based primarily on subjective evidence, that's an across-the-board determination.

[00:17:14] Speaker 00:
As contrast, where it's like it did in this case,

[00:17:18] Speaker 00:
weighing all of the evidence and making specific determinations of weight, those are the matters that this court cannot get into.

[00:17:26] Speaker 00:
But if there are creations of rules of law or a failure to misconstruction of legislative language, then that's where this court can be involved.

[00:17:41] Speaker 00:
And I think it's analogous to the limitations on the court's jurisdiction in the veterans cases,

[00:17:48] Speaker 00:
There's not an ability of the court to look at the underlying factual decisions, but how the law is applied.

[00:17:55] Speaker 03:
And situations in which the board says that they are weighing particular evidence, taking particular evidence into account, but in fact the argument is that that was just

[00:18:09] Speaker 03:
window dressing.

[00:18:10] Speaker 03:
In fact, they did not take it into account.

[00:18:13] Speaker 03:
That sort of situation you would say falls on which side of the line, if that assertion is made.

[00:18:20] Speaker 00:
I think then you have to look at the substance of what actually happened in the board's decision.

[00:18:27] Speaker 00:
If there is actually analysis of the evidence, then it would be an attempt to rephrase factual determination as an issue within the court's jurisdiction.

[00:18:37] Speaker 00:
But there could be an instance where the board simply performed a lip service.

[00:18:41] Speaker 00:
And I think that's on the edge of this court's jurisdiction.

[00:18:45] Speaker 00:
And there may be instances in which that tips the matter into the court's jurisdiction.

[00:18:51] Speaker 00:
But whereas here, there is a thorough review of the evidence and explanation for the weight given to the evidence, we're solidly within matters outside the court's jurisdiction.

[00:19:02] Speaker 00:
Thank you.

[00:19:04] Speaker 03:
Thank you.

[00:19:11] Speaker 02:
I think you're beating around.

[00:19:13] Speaker 02:
You're on the track that I'm trying to argue, Judge Bryson, and I've stated that in my brief.

[00:19:20] Speaker 02:
I would just like to point out one other point from the board's order at page six.

[00:19:26] Speaker 02:
I pointed this out in my brief, that Dr. Mulcahy's opinion, considered with the other medical evidence, may relate to whether the appellant would require some accommodation.

[00:19:36] Speaker 02:
That's what a disability is.

[00:19:38] Speaker 02:
a medical condition that requires accommodation under this scheme.

[00:19:44] Speaker 02:
And as I said in my brief, it absolutely and totally relates.

[00:19:47] Speaker 02:
That's the only real question before MSBB, whether or not they have applied an appropriate standard in resolving this application for disability retirement.

[00:19:57] Speaker 02:
And after dismissing all the subjective evidence, they say, accordingly, we agree with the administrative judge's finding that the appellant has not submitted objective medical evidence that supports their subjective claims of

[00:20:07] Speaker 02:
pain and physical limitations.

[00:20:11] Speaker 02:
It's in there, Dr. Mulcahy.

[00:20:13] Speaker 02:
It's right there.

[00:20:14] Speaker 02:
That's why the post office wouldn't give her a job.

[00:20:18] Speaker 02:
So that's clearly a legal and factual conclusion that the board reached in affirming the administrative judge.

[00:20:26] Speaker 02:
And it's clearly wrong.

[00:20:27] Speaker 02:
I would submit your honors.

[00:20:28] Speaker 02:
And therefore, I would ask that you reverse this.

[00:20:32] Speaker 02:
Thank you.

[00:20:33] Speaker 04:
Thank you Mr. Reed.

[00:20:34] Speaker 04:
Thank both counsels.

[00:20:35] Speaker 04:
The case is taken under submission.

[00:20:36] Speaker 04:
That concludes our arguments for today.