Case: 23-2394 Document: 14 Page: 1 Filed: 03/07/2024
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
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`MICHAEL G. MARTINEZ,
`Petitioner
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`v.
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`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
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`2023-2394
`______________________
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`Petition for review of the Merit Systems Protection
`Board in No. DA-844E-21-0160-I-1.
`______________________
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`Decided: March 7, 2024
`______________________
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`MICHAEL GARY MARTINEZ, San Antonio, TX, pro se.
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`
` ERIC JOHN SINGLEY, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by BRIAN M.
`BOYNTON, ALBERT S. IAROSSI, PATRICIA M. MCCARTHY.
` ______________________
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`Before DYK, MAYER, and TARANTO, Circuit Judges.
`PER CURIAM.
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`Case: 23-2394 Document: 14 Page: 2 Filed: 03/07/2024
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`MARTINEZ v. OPM
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`Michael G. Martinez appeals a decision of the Merit
`Systems Protection Board (“board”) affirming the denial of
`his application for disability retirement benefits. For the
`reasons discussed below, we dismiss his appeal for lack of
`jurisdiction.
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`I. BACKGROUND
`In August 2006, Martinez suffered a work-related lum-
`bar injury while he was employed as a police officer with
`the U.S. Army. Appx. 2, 95–96.* Martinez was removed
`from his position because of “[m]isconduct” in September
`2008. Appx. 93. On March 25, 2012, the Social Security
`Administration (“SSA”) approved Martinez’s application
`for SSA disability benefits. Appx. 87.
`On December 9, 2019, Martinez reported for his first
`and only day of work as a Military Pay Technician with the
`Defense Finance and Accounting Service (“DFAS”). Appx.
`2, 26. During his first day, Martinez signed documents and
`was sworn in but did not otherwise perform any duties of
`his position. Appx. 2, 27, 76. Martinez resigned from his
`position effective December 10, 2019. Appx. 57, 76, 85.
`On December 18, 2019, Martinez filed an application
`with the Office of Personnel Management (“OPM”) seeking
`to obtain Federal Employees’ Retirement System (“FERS”)
`disability retirement benefits. Appx. 82–83. In his appli-
`cation, Martinez asserted that his medical conditions were
`“exacerbated by partaking in a full time work day sched-
`ule” and that he had been unable to sit or stand for an ex-
`tended period of time due to chronic pain. Appx. 82.
`On March 17, 2020, OPM issued an initial decision
`denying Martinez’s application, stating that he did not
`meet the criteria for disability retirement benefits because
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`“Appx.” refers to the appendix filed with the gov-
`*
`ernment’s informal brief.
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`Case: 23-2394 Document: 14 Page: 3 Filed: 03/07/2024
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`MARTINEZ v. OPM
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`his medical conditions were present prior to the time he
`started work at DFAS. Appx. 71–72. OPM concluded,
`moreover, that Martinez had failed to show that his medi-
`cal conditions worsened during his one day of work at
`DFAS. Appx. 72. After OPM affirmed its initial decision,
`Appx. 75–78, Martinez appealed to the board.
`On July 8, 2021, an administrative judge affirmed
`OPM’s decision to deny Martinez’s application for FERS
`disability retirement benefits. See Appx. 1–11. The admin-
`istrative judge determined that Martinez “had a pre-exist-
`ing medical condition” and that he had “failed to
`demonstrate that, during his one day of employment with
`DFAS, his pre-existing condition worsened to the point
`that he was not able to perform the duties of the Military
`Payroll Technician position.” Appx. 10. The board subse-
`quently denied Martinez’s petition for review of the admin-
`istrative judge’s initial decision, stating that it found “it
`highly unlikely that [Martinez’s pre-existing medical] con-
`ditions were not disabling until he showed up for a single
`day of sedentary work on December 9, 2019.” Appx. 13.
`Martinez then filed a timely appeal with this court.
`II. DISCUSSION
`Our jurisdiction to review board decisions is circum-
`scribed by statute. See 5 U.S.C. § 7703(c); Marino v. OPM,
`243 F.3d 1375, 1376–77 (Fed. Cir. 2001). We can set aside
`a decision of the board only if it is found to be: “(1) arbi-
`trary, capricious, an abuse of discretion, or otherwise not
`in accordance with the law; (2) obtained without proce-
`dures required by law, rule, or regulation having been fol-
`lowed; or (3) unsupported by substantial evidence.” 5
`U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
`1307, 1311 (Fed. Cir. 2003).
`This court’s authority to review board decisions is fur-
`ther restricted in cases involving FERS disability retire-
`ment benefits. See 5 U.S.C. § 8347(c); Lindahl v. OPM, 470
`U.S. 768, 791 (1985); Reilly v. OPM, 571 F.3d 1372, 1376
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`Case: 23-2394 Document: 14 Page: 4 Filed: 03/07/2024
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`MARTINEZ v. OPM
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`(Fed. Cir. 2009). In such cases, we are prohibited from re-
`viewing the “factual underpinnings” of a decision to deny
`an application for disability retirement benefits. Lindahl,
`470 U.S. at 791. We are, however, vested with authority
`“to determine whether there has been a substantial depar-
`ture from important procedural rights, a misconstruction
`of the governing legislation, or some like error going to the
`heart of the administrative determination.” Id. (citation
`and internal quotation marks omitted); see also Vanieken–
`Ryals v. OPM, 508 F.3d 1034, 1038 (Fed. Cir. 2007) (ex-
`plaining that this court “may only address the critical legal
`errors, if any, committed by the [board] in reviewing OPM’s
`decision”).
`On appeal, Martinez asserts that the report he submit-
`ted from his physician, Michael A. Velasquez, M.D., was
`sufficient to demonstrate that his pre-existing medical con-
`ditions worsened significantly during his employment with
`DFAS. Pet. Inf. Br. 2; Pet. Inf. Reply Br. 2–4. According to
`Martinez, “the board failed to fully consider the opinion of
`Dr. Velasquez when [it] concluded that [his] opinion was
`not persuasive in light of other evidence.” Pet. Inf. Reply
`Br. 2. In support, Martinez asserts that Velasquez’s report
`“clearly explain[ed]” how “the stress of basic daily work ac-
`tivities,” such as “sitting, standing, twisting, [and] walk-
`ing,” while he was employed at DFAS on December 9, 2019,
`“exacerbated [his] current diagnosed conditions to a severe
`level of bilateral pain, paresthesia, and weakness.” Pet.
`Inf. Reply Br. 4.
`The board, however, carefully considered the evidence
`in the record, including Velasquez’s report, but determined
`that it was insufficient to establish that Martinez “became
`disabled on December 9, 2019, or that his condition wors-
`ened while he was employed as a Military Payroll Techni-
`cian.” Appx. 10. In this regard, the board noted that
`Martinez had been diagnosed with lumbar radiculopathy,
`degenerative spondylosis, and lumbar strain prior to the
`time he began work at DFAS and that the SSA had
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`Case: 23-2394 Document: 14 Page: 5 Filed: 03/07/2024
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`MARTINEZ v. OPM
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`awarded him disability benefits after concluding that he
`became disabled on April 15, 2011. Appx. 7. Additionally,
`while the board acknowledged Velasquez’s medical report,
`it determined that it was “conclusory” and “fail[ed] to set
`forth any explanation or findings demonstrating how [Mar-
`tinez’s] specific activities on December 9, 2019, exacerbated
`his condition.” Appx. 10. We are without authority to re-
`view the board’s factual findings on physical disability
`questions or to reweigh the evidence it evaluated. See
`Vanieken–Ryals, 508 F.3d at 1040 (stating that “[g]iving
`little weight to specific evidence because of its individual
`failings, such as the lack of qualifications of the author of a
`particular medical report, is a factual analysis over which
`we have no jurisdiction to review”).
`Martinez, moreover, does not identify any “critical le-
`gal errors,” id. at 1038, committed by the board in review-
`ing OPM’s decision to deny his application for disability
`retirement benefits. See Reilly, 571 F.3d at 1377 (empha-
`sizing that “in the rare case where the petitioner alleges
`that the agency committed legal errors of sufficient gravity,
`we have jurisdiction to review the [b]oard’s decision”);
`Bracey v. OPM, 236 F.3d 1356, 1363 (Fed. Cir. 2001) (ex-
`plaining that this court can review whether the statutes
`and regulations related to disability retirement benefits
`have been properly construed). Nor does he point to any
`“substantial departure from important procedural rights,”
`Lindahl, 470 U.S. at 791 (citation and internal quotation
`marks omitted), in the board’s proceedings. Thus, because
`Martinez challenges only the factual underpinnings of the
`decision to deny his application for FERS disability retire-
`ment benefits, we lack jurisdiction over his appeal.
`III. CONCLUSION
`Accordingly, the appeal from the decision of the Merit
`Systems Protection Board is dismissed.
`DISMISSED
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