JERRI TREVINO v. BOARD OF TRUSTEES PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3119-11T1

JERRI TREVINO,

Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent.

__________________________________

November 30, 2012

 

Argued November 15, 2012 - Decided

 

Before Judges Sapp-Peterson and Haas.

 

On appeal from the Board of Trustees of the Public Employees Retirement System, Department of Treasury, PERS #766579.

 

Vincent J. Pancari argued the cause for appellant (Capizola, Pancari, Lapham & Fralinger, P.A., attorneys; Mr. Pancari, on the briefs).

 

Robert H. Stoloff, Assistant Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stoloff, on the brief).

PER CURIAM

Appellant Jerri Trevino appeals from a final determination of the Board of Trustees (Board), Public Employees' Retirement System (PERS), dated February 16, 2012, denying her application for ordinary disability retirement benefits under N.J.S.A. 43:15A-42. We affirm.

I.

In September 1986, appellant began working in a clerical position for the Department of Corrections. On May 9, 2008, appellant filed an application for ordinary disability retirement benefits, claiming she was disabled by "bipolar disorder, depression [and] ADHD." At the time of this application, she was working as a secretarial assistant for the Assistant Superintendent of the South Woods State Prison. The Board denied the application on October 16, 2008, finding that appellant was not disabled. Appellant filed an administrative appeal, which the Board referred to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).

At the hearing, appellant presented the testimony of Assistant Superintendent William Hepner; Joseph Marcucci, a retired employee advisory service counselor with the Department of Personnel; appellant's companion, Daniel Kellett; and herself. She also submitted the transcripts of the de bene esse depositions of her treating, but unlicensed, psychologist, Luise Gray, Psy.D., and her treating and board-certified psychiatrist, Lawrence Clinton, M.D. The Board presented the expert testimony of Regis Acosta, M.D., a board-certified psychiatrist. The following testimony and evidence was adduced at trial.

Appellant testified she began to have problems with her attendance and getting her work done after she came to South Woods in 1996 or 1997. However, she could not recall a specific year when her issues commenced. In 2007, she broke her kneecap and was out of work for a time. When she returned to her job and began working for Hepner, she continued to have problems getting up to go to work and with concentrating once she got there. She saw both Dr. Gray and Dr. Clinton for help with these issues. She stated they told her she had "[b]ipolar disorder, ADD, manic-depressive and there's underlying things, OCD and different, you know, obsessive compulsive disorder, different things like that."

Appellant worked for Hepner from September 2007 until the summer of 2008. Hepner testified appellant failed to get reports done on time and came in late for work. She had "mood swings" during the day, sometimes "crying on the phone" to him in the morning "and then during the course of the day she's very upbeat and happy." He stated her performance grew worse over the months she worked for him.

Marcucci met with appellant several times in late 2007 or early 2008 to counsel her for her time and attendance issues. He encouraged her to continue to participate in therapy. He testified that her attendance problems would sometimes get worse, but then "get better." Marcucci stated he "felt that if [appellant] continued to go the way she was going in terms of the time and attendance and - - and the performance issues that she was going to lose her job and I recommended that she apply for pension disability."

Kellett had known appellant for over twenty years and lived with her since 2006. He testified that, since 2005, appellant would sometimes experience days when she would not get out of bed and she sometimes would not shower or change her clothes.

Dr. Gray had counseled appellant since 1999. She diagnosed appellant with bipolar disorder and attention deficit hyperactivity disorder (ADHD) and opined that appellant was disabled due to "the degree of her depression and lethargy and disorganized thinking and concentrating." This diagnosis was based solely on appellant's "self-reporting" her issues to the psychologist. Dr. Gray did not perform any neurological or mental health testing and she acknowledged that ADHD is generally treatable and is usually not disabling. She also recognized that appellant had rallied from past episodes of depression.

Dr. Clinton first saw appellant in 2005. Other than mentioning during his deposition that appellant had a "history of [ADHD]," there is nothing in the record to indicate that Dr. Clinton independently diagnosed appellant with this condition. Dr. Clinton, however, did diagnose appellant as having Bipolar II disorder, which he stated was a "subtle diagnosis" because "in the course of a day, she may be up and down quite a few times; and then sometimes with Bipolar II, it smooth[e]s out and they function fairly well." He stated appellant mentioned she was having issues with "a boss." Dr. Clinton stated that a "stressor," like "trouble with a boss," could trigger a period of depression for someone with Bipolar II. Dr. Clinton did no testing to corroborate his diagnosis.

Dr. Clinton stated he prescribed medication for appellant, which "helped her tremendously with [her] organizational skills and her cognitive functioning." However, appellant stopped taking the medication and she reported to the doctor that her focus and concentration problems had resumed. With medication, Dr. Clinton stated appellant's depression could be kept "under control." However, he could still "see problems" with appellant's "ability to cope with everything around her." Dr. Clinton could not say whether appellant was disabled from all secretarial work or just from her most recent position with Hepner.

Dr. Acosta was the only expert who testified in person at the OAL hearing. He questioned Dr. Gray's and Dr. Clinton's diagnosis of ADHD because it was not consistent with the "Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision" (DSM IV TR), which is the "official nomenclature of psychiatry in this country[.]" Pursuant to the DSM IV TR, a diagnosis of ADHD is not appropriate unless the subject had symptoms before the age of seven. There was nothing in appellant's history to indicate this was the case. Indeed, she told Dr. Acosta she graduated from high school with honors, "never skipped school," and completed a Temple University program in court reporting. Dr. Acosta testified that, whatever was troubling appellant, it did not prevent her education or professional development. He opined that, even if appellant showed symptoms of ADHD, it was not sufficiently severe to make her disabled.

Unlike Dr. Gray and Dr. Clinton, Dr. Acosta performed a number of different tests on appellant. Appellant's scores on these tests did not indicate that she suffered from any significant anxiety or depression. Instead, the testing indicated "mild to non-existent depressive symptoms," meaning "she has some lingering sense of depression, her own perception as opposed to the findings on the [test], which were really not significant for depression or anxiety."

Dr. Acosta also found it significant that there were no records or other medical evidence "sufficient to demonstrate a severe 'escalating course of illness[.]'" Neither of appellant's doctors had ever prescribed any rehabilitative services, such as hospitalization or referral to an intensive inpatient program. He opined that the lack of such referrals prevented a conclusion that appellant's condition was worsening or severe enough to be considered disabling.

Dr. Acosta testified that the existence of a condition like depression, bipolar or ADHD is not inconsistent with the ability to perform competitive work. He noted that other elements, like work load and conflict with fellow employees or supervisors, can prevent good job performance. Based upon all of these findings, Dr. Acosta opined that appellant's condition was "chronic," because she had recurring bouts with depression. However, he testified appellant's condition was "not severe or progressive" and she was not disabled within the intendment of N.J.S.A. 43:15A-42.

The ALJ issued an initial decision in which she concluded that Dr. Gray's and Dr. Clinton's transcribed testimony was more persuasive than Dr. Acosta's live testimony. Based upon the information provided by appellant's doctors, the ALJ concluded appellant met the statutory standard of being "mentally incapacitated for the performance of duty." The ALJ therefore recommended that appellant's application for ordinary disability retirement benefits be granted.

After reviewing the ALJ's initial decision and the entire record, including the exceptions and written submissions of the parties, the Board rejected the ALJ's recommendation. The Board credited Dr. Acosta's testimony that appellant had not demonstrated she was disabled. In so ruling, the Board explained that appellant's doctors never performed any objective testing on her and, instead, relied solely upon her own self-reporting of her claimed problems. The doctors also never considered increasing appellant's level of care, even though they opined her condition was worsening, and medication and therapy had helped her in the past. The Board therefore found that appellant had not met her burden of proving by a preponderance of the evidence that she was incapacitated from the performance of her duties and should be retired on an ordinary disability pension. This appeal followed.

II.

On appeal, appellant argues the Board erred in denying her application for ordinary disability benefits and contends she established by a preponderance of the credible evidence that she was "mentally incapacitated for the performance of duty and should be retired."

Our scope of review in an appeal from a final decision of an administrative agency is strictly limited. In re Taylor, 158 N.J. 644, 656 (1999); Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 189 (1980). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009).

When reviewing a final decision of an administrative agency, we consider whether there is sufficient credible evidence to support the agency's factual findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We must affirm the agency's factual findings if we are satisfied "that the evidence and the inferences to be drawn therefrom support" the agency's decision. Id. at 588.

In order to qualify for ordinary disability retirement benefits under N.J.S.A. 43:15A-42, a member of the PERS must establish by a preponderance of the credible evidence that he or she is "physically or mentally incapacitated from the performance of duty and should be retired." The member must establish an incapacity to perform duties in the general area of his or her regular employment, rather than merely showing an inability to perform his or her specific job. Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 130-31 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009). Applying our highly deferential standard of review, we are satisfied there is substantial credible evidence in the record to support the Board's determination that appellant failed to show that she qualifies for ordinary disability benefits.

Contrary to appellant's argument, the Board was not required to simply accept the ALJ's finding that the testimony of Dr. Gray and Dr. Clinton was more persuasive than the testimony of Dr. Acosta. Because these were expert witnesses, the Board was able to make its own determination as to the probative value of the testimony. ZRB, LLC v. N.J. Dept. of Envtl. Prot., 403 N.J. Super. 531, 561-62 (App. Div. 2008). In rejecting the ALJ's conclusion that appellant's doctors' opinions were more persuasive than that offered by Dr. Acosta, the Board stated with particularity its reasons for doing so and it thoroughly explained "why the ALJ's decision was not supported by sufficient credible evidence or was otherwise arbitrary." Cavalieri v. Bd. of Trs., Pub. Employees' Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).

In crediting Dr. Acosta's opinion, the Board discussed his testimony regarding the application of the DSM IV TR, the thoroughness of his examination, his use of objective testing, and the lack of such testing by appellant's doctors. The Board also noted Dr. Clinton's inability to conclude whether appellant was disabled from working as a secretarial assistant for Hepner or whether she was disabled from performing less demanding secretarial work. Bueno, supra, 404 N.J. Super. at 131.

While appellant's doctors stated her condition was progressive, Dr. Acosta explained that, under the DMS IV TR, neither ADHD or Bipolar II are progressive conditions. Even more significantly, appellant's doctors never considered prescribing an increased level of care, including rehabilitative services, to address what they claimed was an increasingly disabling condition. Because appellant's alleged condition appears to be treatable, and Dr. Clinton conceded he could control appellant's alleged depression if she were compliant with the medication regimen he previously prescribed, the record fully supports the Board's finding that appellant had not demonstrated she was "mentally incapacitated for the performance of duty and should be retired" under N.J.S.A. 43:15A-42.

The Board also noted that Dr. Gray and Dr. Clinton did not testify at the OAL hearing. Because only the transcripts of their deposition testimony was provided, the ALJ had no opportunity to observe these witnesses as they testified. Therefore, the Board's decision to reject the ALJ's conclusion that their testimony was more "credible" than that offered by Dr. Acosta is also amply supported by the record.

Finally, there was a sufficient evidentiary basis for the Board's decision to reject the lay testimony of appellant and Kellett as to the nature and extent of her condition. While both claimed appellant had had debilitating difficulties over the years, both conceded there were also times when she could work well. Neither witness was qualified to opine whether appellant was incapacitated from the performance of her duties.

Under these circumstances, the Board's finding that appellant failed to prove that she qualifies for ordinary disability benefits pursuant to N.J.S.A. 43:15A-42 is based on sufficient credible evidence in the record. Taylor, supra, 158 N.J. at 658-59. Therefore, we affirm the final decision of the Board.

Affirmed.