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Federal Disability Retirement: OPM’s Denial Strategy

Is OPM objective in its Federal Disability Retirement review process?

Federal agencies like the U.S. Office of Personnel Management are often characterized as having no inherent “bias” or “interest” in making a determination about Federal Disability Retirement cases. The agency itself is deemed to be “objective” in their determinations, and merely reviewing each application for Federal Disability Retirement benefits to ensure that each Federal Disability Retirement application meets the applicable legal criteria and regulatory oversight which governs the process, but objectivity is a metaphorical “place” which is supposed to be distant both from the speaker and the opposition. It is that point between a Hegelian Thesis-versus-antithesis, culminating in a synthesis of a point-counterpoint.

Is this all gobbledygook? Is there, perhaps, no such thing as “objectivity”? Does OPM’s decision-making process satisfy the criteria longing for objectivity? 

One can argue that everyone is biased, but then the statement itself becomes meaningless. For, in philosophical jargon, if everything is meaningless, then meaning itself becomes an absurdity. And so we come back to the original point: Is there such a thing as “objectivity”? Does OPM meet the criteria of being “objective” and, if so, what difference does it make?

Of course, time pressures, the volume of cases to review, and an administration’s unstated policy to restrict the number of approvals of disability retirement applications may all play a significant factor in the reviewing process of a Federal Disability Retirement application. Moreover, not all Federal Disability Retirement applications are reviewed with the same meticulousness, intensity or aggressive minutiae of evaluation. As with most things in life, an initial decision rendered by the U.S. Office of Personnel Management in either approving or denying a Federal Disability Retirement application can seem like the proverbial “roll of the dice”.

OPM’s denial strategy in a Federal Disability Retirement application is quite telling, and reveals a methodology which is far from “objective”. For, a truly objective denial would concede that there are strengths to the case, as well as the weaknesses pointed out.

However, that is not how OPM denies a Federal Disability Retirement application. If they decide to deny your case, it will be made out to look “as if” you never had a chance to begin with. Furthermore, OPM will make “implying” arguments which have no basis in the law, and deny the validity of certain other evidence despite the clear relevance in your favor. 

Consider the scenario: A Federal or Postal employee suffers from a medical condition and attempts to file a Federal Disability Retirement application without an attorney.

At the outset, two strikes are against him or her: The medical condition itself takes up most of one’s time, and the stress of contending with the medical condition interferes with the ability and capacity to “deal” with the administrative procedures of fighting for one’s Federal Disability Retirement benefits. Moreover, not being familiar with the compendium of Federal Disability Retirement Laws, if the U.S. Office of Personnel Management says “X is the case”, or implies that “Y is just so”, what is the basis of any refutation?

Given the above, here are some of specific approaches which OPM uses:

Making it appear that, because Social Security denied your application, therefore you are not qualified for Federal Disability Retirement benefits.

The “finding” will normally appear towards the end of the “discussion” portion of the denial letter, and will reference it in the following way: “Your application for Social Security benefits has been denied. For all of the reasons discussed above, your application for disability retirement is denied.”

Such a statement, or any variation thereof, clearly implies that the denial by the Social Security Administration is somehow connected to the validity of OPM’s denial. Thus, the argument goes: X reviewed your application. X denied you. Therefore, Y (OPM) also denies you.

This is a “piggy-back” argument — of OPM’s denial being valid because it piggy-backs onto Social Security’s denial. But if that were the case, then 99.9% of all Federal Disability Retirement applications would be denied. Why? Because the law and regulation governing Federal Disability Retirement requires that a Federal Disability Retirement applicant must file for Social Security benefits prior to submitting his or her application to OPM.

Most people who file for Federal Disability Retirement benefits are still employed by the Federal agency or the Postal Service, and thus will be automatically denied by the Social Security Administration based upon having earned too much income. Furthermore — and OPM knows this — Social Security has a higher legal threshold of “total disability” as opposed to merely being medically unable to perform one or more of the essential elements of one’s job. Yet, by tying the two together and making it appear as if a denial by SSA has any relevance or impact upon a Federal Disability Retirement application, OPM is making it appear “as if” your Federal Disability Retirement application has no validity or basis in the law.

“Your doctor failed to provide any restrictions. The medical documentation fails to show that you cannot continue to perform your job. Therefore, your disability retirement application is denied.”

When an individual is beset with a medical condition, two concurrent events tend to happen in a confluence which harms a Federal Disability Retirement application. First, most people go to their doctors in order to get treated — in other words, in an effort to “get better”.

Second, most doctors are treating their patients in an effort to “cure” them. They are not thinking about imposing onerous restrictions in order to limit their patient’s life activities or employment demands. When you combine the two — the Federal or Postal employee’s desire to get better, and the doctor’s attempt to help get a patient better — it all falls into the denying hands of an OPM “medical specialist”.

What OPM fails to explain, is that many jobs are simply not amenable to specific “restrictions”, anyway. For example — administrative and cognitive-intensive jobs which require sustained and extensive durations of sedentary focus and concentration are often jobs which cannot be quantified by physical restrictions.

Rather, the medical condition itself — whether from the profound fatigue experienced from minimal cognitive input, or from loss of evaluative judgment from a psychiatric condition or side effects from necessary medications — may be incompatible with continuation in a particular line of work. Placing specific restrictions upon a person is not the only basis in law for meeting the eligibility criteria in an OPM Federal Disability Retirement application. Do not let OPM lead you to think otherwise.

Selective Extrapolation: On Such-and-such-date, you told your doctor that you were “pain free and felt good.”

Thus, you do not have a medical condition which prevents you from doing your job. What?

So, if a person is in pain and is limited for 23 hours and 59 minutes, but during the 1-minute timeframe that your treating doctor asks you whether you are in pain, and you reflect upon it and say to yourself, “No, I am not in pain right now” and you are honest about it — that is the moment when OPM will place all of their cards in that one basket of a statement, and conclude that you are not eligible for disability retirement benefits. They will selectively pick and choose from medical reports and records, and even mis-quote statements, take conclusions completely out of context, and conclude that the evidence fails to show that you cannot perform your job duties.

Describe in great detail the various medical conditions — then simply conclude that “you are not found to be disabled”.

This is part of the “appearance” of having reviewed the medical evidence submitted and of having “discussed” the medical evidence. Often, long paragraphs of quotations extracted directly from your doctor’s notes or medical report will be included, and it might even describe your medical conditions in ways which appear to favor your cause — but, then, OPM will conclude that, nevertheless, you are not found to be disabled. This is what is called the “counter-causal’ strategy — that even given the acknowledgment of your medical conditions, you still do not meet the legal criteria as interpreted by the U.S. Office of Personnel Management in order to be approved.

The “you-idiot-you-never-had-a-chance” to begin with strategy.

Sometimes, an OPM denial will be pages-upon-pages long — as if the “medical specialist” had nothing better to do and decided to take a “shotgun” approach. Extensive and meandering extrapolations will be lifted from your medical records. At the end of it all, there will be a conclusory statement: “You have not shown that you cannot perform efficient service in the position of your record.” No effort is given to making a causal connection between the statements extrapolated and the conclusion of denial reached; but it is in the lengthy appearance of having discussed and reviewed your evidence — and the conclusion of a denial — which is meant to scare you off.

Conclusion

A Federal or Postal worker who submits a Federal Disability Retirement application expects to have a fair hearing of his or her case. Of course, there are degrees of strength in any given Federal Disability Retirement case — and not all cases meet the legal criteria of a valid Federal Disability Retirement case.

On the other hand, it is simply untrue to presume that OPM is “objective” and engages as an uninterested party in evaluating a Federal Disability Retirement application. Where people are involved, bias is almost certainly a component to be seriously considered. The strategy comes down to: If X-percentage of applicants will give up when denied at the initial stage of the application, and the denial will make it appear as if the applicant stands little-to-no chance at any Reconsideration or Appeal Stage, then the volume of workload will be consequentially diminished. 

In the end, objectivity is a standard which is difficult to meet, and perhaps impossible to achieve. As with most things in life, where there are different people involved, different levels of objectivity are met.

The U.S. Office of Personnel Management is the Federal Agency which is empowered to accept, review, evaluate and make a decision upon every Federal Disability Retirement application submitted by all Federal and Postal employees (with some exceptions excluding foreign service and CIA employees). OPM, however, does not hold a “god’s-eye” position as the final arbiter in a Federal Disability Retirement case — and that is why the evaluative process involved includes some safeguards:

  • If denied, an opportunity for “Reconsideration” by having the case looked at, with additional evidence allowed to be submitted, by another reviewer at OPM.
  • If denied a second time, to take it out of the hands of OPM and be reviewed by an Administrative Judge at the U.S. Merit Systems Protection Board.

By allowing for the Reconsideration of a denied Federal Disability Retirement application, and then by an Administrative Judge at the MSPB, such safeguards allow for a greater level of objectivity in the end. It provides for a “fair shot” at considering a Federal Disability Retirement application. And, in the end, that is what most people seek — a fair shot, with some safeguards, in order to ensure an acceptable level of objectivity.

About the Author

Attorney Robert R. McGill specializes in Federal Disability Retirement cases helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website.