How does one attain truth?  Can truth be defined?  When Pilate

asked the question, "What is Truth?" did he hesitate to hear the answer? 

While his body turned away, did he in that momentary lapse of making his fateful

decision, pause and hope for an answer?  Is there a cohesiveness and

correspondence between the subjective world and the objective, noumenal

world?  Is Truth there to be discovered, or to be created?  Why is a

man who is truthful a few times considered credible, while the one who lies once

is doubted? 

-- from Questions on Truth and Being

Credibility, while often a correlative component, is a concept distinct from

Truth.  Witnesses often fail to recognize this distinction, and get

themselves into trouble in court, or in legal submissions -- or in filing an

application for Federal Disability Retirement benefits under FERS or

CSRS.   The problem with honest people is that they believe that, by

stating something honestly, they will also appear credible, and as such, the

Office of Personnel Management will automatically approve an application for

Federal Disability Retirement benefits. 

But it is the job of the Office of Personnel Management to scrutinize each

application for Federal Disability Retirement benefits, and to approve such

applications which prove, by a preponderance of the evidence, three basic

components:  (A) a Federal or Postal employee under FERS or CSRS has a

medical condition; (B) the medical condition prevents him or her from performing

one or more of the essential elements of one's job; and (C)  that the

Agency is unable to accommodate the individual or, alternatively, to reassign

the individual to a position in the same pay or grade.  Overriding the

application of the legal criteria, however, is the job of ascertaining the

credibility and integrity of the application itself.

How is credibility ascertained?  At the most basic level, prima facie

exaggeration of a claim is often the foundational "red flag" which can bring

into question the integrity of a Federal Disability Retirement

application.  Where there is a dissonance between the medical documentation

describing the clinical basis of one's medical condition, and the description by

the applicant as to the nature, extent and severity of the medical condition, a

question of credibility may arise.  Yes, the former is based upon a

clinical examination by a Third Party, while the latter is based upon the

subjective, personal experiences of the Applicant.  Therefore, the latter

may often include colorful and expansive adjectives describing the experiential

universe of pain and discomfort.  However, where the dissonance between the

former and latter results in a spectrum of incredulity, a question of

credibility arises. 

This is precisely why the Office of Personnel Management attempts to

bifurcate between "objective" medical evidence as opposed to "subjective"

medical evidence.  The Federal Circuit Court case of Vanieken-Ryals v. OPM,

508 F.3d 1034 (Fed. Cir. 2007) effectively quashed OPM's adherence to the

subjective/objective medical evidence distinction, by pointing out that there

exists no "statute or applicable regulation of which we are aware [which]

imposes such a requirement [that "objective" evidence is "required to prove

disability"]".  The Court in Vanieken-Ryals went on to state

unequivocally:  "In fact, applicable law suggests the opposite rule. 

OPM's regulations define the type of 'medical documentation' required to

establish disability…There is no hint of any objective/subjective distinction,

and the regulation clearly indicates that any evidence -- 'subjective' or

otherwise -- utilizing 'established diagnostic criteria' and consistent with

'generally accepted professional standards' is eligible for

consideration."  Thus, "subjective evidence" -- evidence such as the

Applicant's own statement of disability -- is certainly eligible for

consideration in a Federal Disability Retirement application.  However, the

problem occurs when there arises self-contradictory evidence between different

aspects of a submission -- such as disagreement between a medical report and the

claim of the applicant; countervailing statements by the Agency or Supervisor;

and other potential areas of conflicts.

Despite the clear refutation and attempted boundaries imposed by the United

States Court of Appeals for the Federal Circuit in delimiting the conceptual

distinction between "objective" evidence and "subjective" evidence, the Office

of Personnel Management still continues to favor what they deem to be

"objective" medical evidence.  Their argument is one based upon the need to

ascertain the credibility of the "subjective" evidence, by contrasting and

comparing it to the "objective" medical evidence.  That is why, in

reviewing a Federal Disability Retirement application under FERS or CSRS, the

Office of Personnel Management will often inquire as to whether a "Functional

Capacity Evaluation" was administered (as if the dozens of clinical examinations

by the treating doctor somehow doesn't measure up to a single 45-minute FCE), or

whether "psychological tests" were done (again, as if the psychiatrist or the

psychologist who had multiple encounters with the patient are not trained to

sufficiently perform clinical evaluations). 

Ultimately, credibility is a matter of combining compelling evidence with

content and context which are believable and carefully circumscribed with the

foundational direction of Truth.  Questions of credibility can arise from

multiple sources of dissonance or with the uncontrolled, excessive use of

multiple adjectives.  Further, another source of "red flags" can originate

from the principle as stated by Gertrude, Queen of Denmark and mother of Hamlet,

who said, "The lady doth protest too much, methinks."  In other words,

don't become defensive too quickly even if you believe that there are weak

points in your Federal Disability Retirement application.  Let the medical

evidence speak for itself.  Let your Applicant's Statement of Disability

provide the explanatory context to the medical evidence which is being

attached.
   
As a final note on credibility, it is

instructive to review what the Merit Systems Protection Board outlined in Rapp

v. OPM, Docket No. AT-844E-05-0056-M-1, decided on May 19, 2008.  There,

the Board stated that, "To resolve credibility issues, the trier of fact must

identify the factual questions in dispute, summarize the evidence on each

disputed question, state which version he believes, and explain in detail why he

found the chosen version more credible, considering such factors as:  (1)

The witness's opportunity and capacity to observe the event or act in question;

(2) the witness's character; (3) any prior inconsistent statement by the

witness; (4) a witness's bias, or lack of bias; (5) the contradiction of the

witness's version of events by other evidence or its consistency with other

evidence; (6) the inherent improbability of the witness's version of events; and

(7) the witness's demeanor." [Citations omitted]   Note that numbers

3, 5 and 6 of the factors have to do with coherence and consistency -- meaning,

essentially, that the narrative must lack self-contradiction or dissonance with

other evidence. 

One must remember that when a Federal or Postal employee files a Federal

Disability Retirement application under FERS or CSRS, that the applicant is

introducing him or herself for the first time to a stranger, based upon a "paper

submission".  The people who evaluate and review each Federal Disability

Retirement packet do not "know" the individual, and no reputation precedes the

evaluation process.  The burden of proof is always upon the individual

applicant.  It is difficult enough for a person who is suffering from one,

or multiple, medical conditions, to describe in detail, in the form of the

personal "I" pronoun, the nature, extent, and severity of the medical condition,

and how that condition impacts one's inability to perform one or more of the

essential elements of one's job.  In preparing such an application, it is

always important to have a perspective of objectivity -- of being able to review

all of the different and multitudinous elements which comprise a Federal

Disability Retirement submission -- and determine its coherence and

consistency.  This is often difficult to do without the assistance of an

attorney.

Credibility of a Federal Disability Retirement application is always an

overarching element.  While Truth must always be the guiding compass in any

administrative or legal submission, coherence and consistency, resulting in

credibility, must always be evaluated and safeguarded.  For, it is

credibility which determines the character of a person, and the reputation of an

individual is always important to maintain in any endeavor.  All of the

elements which comprise a complete, coherent, and compelling story of a Federal

or Postal employee who dedicated his or her life to working in the Federal

Sector, who became unable, because of a medical condition, to continue in his or

her career, should result in the retention of a semblance of economic security

by obtaining the benefit of a Federal Disability Retirement annuity -- along

with one's credibility.

About the Author

Robert R. McGill is an attorney who specializes in federal disability

retirement, a practice area he dedicates 100% of his time helping Federal and

Postal workers secure their disability retirement benefits under both FERS and

CSRS. For more information about his legal services, publications and forum,

please visit his CSRS

and FERS Disability Retirement Website