Federal Disability Retirement: I’ve been approved for Social Security disability, but denied Disability retirement – what next?

I have heard from a lot of disability retirement applicants that they have been approved for Social Security disability but later denied disability retirement by OPM. Many of the applicants that call us are confused how this can be, so this blog will attempt to explain how this might happen – and what you can do about it.

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

A Social Security disability applicant need only prove that he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

A FERS disability retirement applicant needs to prove that he or she is unable, because of disease or injury, to render useful and efficient service” in his current position and does not qualify for accommodation or reassignment.

It is hard to imagine a disability that qualifies for Social Security disability benefits but does not qualify for FERS disability retirement. This is particularly true given the fact that the Social Security requirement is that you are unable to perform any gainful activity, and the FERS requirement is only that you are unable to perform useful and efficient service in just one position.

In a disability retirement application under FERS, OPM and the MSPB must consider an award of Social Security disability benefits. However, either OPM or the MSPB may find that evidence of a Social Security disability award is outweighed by inconsistent and inadequate medical evidence, Contrary to some advice you may receive, an award of Social Security disability benefits does not require a similar finding regarding a disability retirement claim under FERS.

Thus, in most situations where an applicant is awarded Social Security disability but denied FERS 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 may be able to successfully argue that your medical evidence is inadequate to support a grant of FERS disability retirement.

Another example occurs when the medical evidence shows that you did not comply with a doctor’s orders for treatment that might have controlled the medical condition and allowed you to keep working.

How do you fix this problem?

First, when you apply for FERS disability retirement, you make sure that your doctor reviews your position description and explains how the condition you have prevents you from performing those duties (an explanation, not a statement, is essential).

Second, when OPM denies your application for FERS disability retirement because your medical evidence doesn’t objectively reason how your condition prevents you from performing your duties, you supplement the record with a reasoned explanation from your doctor at the reconsideration stage.

Third, when you are appealing to the MSPB, you call the doctor to testify as to how your condition prevents you from performing your duties.

None of those three steps guarantees you will be granted FERS disability retirement.However, it shows that there is a way to attack OPM‘s analysis throughout the process.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The Law Office of Eric L. Pines represents Federal employees under FERS or CSRS in their applications for disability retirement to OPM. If an application for disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of disability retirement applications by OPM.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The Law Office of Eric Pines represents Federal employees under FERS or CSRS in their applications for disability retirement to OPM. If an application for disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of d disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about disability retirement under FERS or CSRS, or OPM’s denial of your applications for disability retirement benefits under FERS or CSRS, contact an MSPB attorney at the Law Office of Eric Pines to schedule a telephone consultation.