Granted Social Security Disability but Denied FERS/CSRS Disability Retirement?

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As a federal disability retirement lawyer, I have heard from a lot of federal employees and postal workers that they have been approved for Social Security disability (SSDI) but later denied federal disability retirement under FERS or CSRS by the Office of Personnel Management (OPM). This can be very confusing to the federal employee or postal worker; after all, how can two federal agencies reach seemingly contradictory conclusions? This article will attempt to explain how this might happen -- and what the federal employee or postal worker can do about it.

But before we begin, know that, contrary to some advice you may receive, if you are a federal employee or postal worker, to get approved for an award of Social Security disability benefits, you don't have to be approved for federal disability retirement.

Why Federal Disability Can Be Denied After an SSDI Award

The biggest reason that you might receive different decisions -- a grant of Social Security disability but not federal disability retirement under FERS or CSRS (or vice versa) -- is because the legal standards for the two types of disability claims are different.

Social Security definition of disability. Generally, a Social Security disability applicant need only prove that, for at least one year, he or she is unable to engage in any "substantial gainful activity" because of a medical condition that is "medically determinable" by objective evidence. That's a mouthful; boiled down, to be eligible for Social Security disability, you must not be able to perform any gainful work due to a medical condition that will last at least 12 months.

Federal Employees Retirement System definition of disability. A federal disability retirement applicant needs to prove that he or she is unable, because of disease or injury, to perform "useful and efficient service" in his or her current position, and accommodations can't be made to allow the employee to continue working, and the employee does not qualify for reassignment. This is a little easier to understand. For FERS/CSRS disability retirement, a postal worker or federal employee need only be unable to work in their current job because of a medical condition.

SSDI vs. FERS. It is hard to imagine a medical condition that qualifies a federal employee or postal worker for Social Security disability benefits but does not qualify that same individual for federal disability retirement under FERS or CSRS. That's because the Social Security definition of disability requires that you are unable to perform any type of substantial work while the FERS and CSRS definition requires only that you can't perform useful and efficient service in only your current job. However, it does happen.

Inconsistent or inadequate evidence. In any federal disability retirement application or appeal, both OPM and the MSPB must consider whether the applicant received an award of Social Security disability benefits. Where most federal employees or postal workers lose their FERS care is when the OPM or the MSPB concludes that the evidence of a Social Security disability award is outweighed by inconsistent and inadequate medical evidence in the federal disability retirement application.

Missing rationale for inability to work. In most situations where a federal employee or postal worker is awarded Social Security disability but denied federal disability retirement, the issue comes down to the objective nature of the medical evidence and what it says (or, more importantly, what the medical evidence doesn't say). If your medical evidence does not show your doctor's objective reasoning as to how certain aspects of a particular medical condition render you unable to perform specific work requirements, then OPM and the MSPB may be able to successfully conclude that your medical evidence is inadequate to support a grant of federal disability retirement -- even though you are getting Social Security Disability for the same condition.

Failure to follow treatment recommendations. Additionally, if your medical evidence shows that you did not comply with a doctor's orders for medical treatment (such as medication or surgery) that might have controlled the medical condition and allowed you to keep working, then OPM and the MSPB could deny your federal disability retirement claim, even though Social Security has approved you for disability retirement.

What Can a Federal or Postal Employee Do to Win on Appeal?

While none of the following four steps guarantee you will be granted federal disability retirement, or perfectly protect you from an MSPB finding that, while approved for Social Security disability, you are not entitled to federal disability retirement, following them is the best way to attack OPM's denial throughout the process.

Step One: Familiarize Your Doctor With Your Position Description

First, when you apply for federal disability retirement, make sure that your doctor reviews your federal or postal position description and explains how the mental or physical condition you have prevents you from performing the specific duties in that position description. Make sure the doctor states in writing that he reviewed and considered that position description. As always, an explanation, not a statement, is essential.

Step Two: Supplement the Medical Record on Appeal

Second, if OPM denied your application for federal disability retirement because your medical evidence didn't explain how your condition prevents you from performing your duties, ask your doctor for a reasoned explanation of exactly how the limitations of your condition prevent you from performing your duties (for example, spinal nerve root compression caused by a herniated disc prevents you from bending and stooping, a requirement of your grade 7 carpentry position). Add the explanation to your record at the reconsideration stage.

Step Three: Secure Your Doctor's Testimony

Third, when you are preparing for an appeal hearing at the MSPB, call your doctor to testify as to how your condition prevents you from performing the duties of your federal or postal position.

Step Four: Submit a Copy of the Award Letter Granting Social Security Disability

Fourth, always provide a copy of the Social Security decision granting you disability. But there may or may not be a need to give your entire Social Security Disability application and supporting medical documentation to the OPM or the MSPB -- you should always consult with a federal disability retirement lawyer before giving too much (possibly irrelevant) medical information to OPM or the MSPB.

Getting Legal Help

If you've been granted Social Security disability, it's clear you have a strong case -- it is not easy to get approved for SSDI. This means that your federal disability retirement denial may have been based on a problem with inconsistent, missing, or harmful evidence, or a belief that treatment would have cured your disability. Consult with a disability lawyer to see what you can do to correct the problems in your specific situation.

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