A.B v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
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        parties in the case and its use in other cases is limited. R. 1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2684-16T3

A.B.,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,

          Respondent-Respondent.
____________________________________

              Submitted February 15, 2018 – Decided March 1, 2018

              Before Judges Haas and Rothstadt.

              On appeal from the Board of Trustees of the
              Public    Employees'    Retirement    System,
              Department of Treasury, PERS No. 2-1097252.

              Ridgway  &   Stayton, LLC,   attorneys for
              appellant (Herbert J. Stayton, Jr., on the
              brief).

              Gubir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Sadyhé T.
              Bradley, Deputy Attorney General, on the
              brief).

PER CURIAM

        Appellant    A.B.    appeals    from   the   January    19,   2017   final

determination of the Board of Trustees of the Public Employees'
Retirement System (Board), denying her application for ordinary

disability   retirement   benefits       under   
N.J.S.A.   43:15A-42.      We

affirm.

     In February 2000, A.B. began working in the adoption service

unit of the Division of Youth and Family Services (Division).               In

2006, she became a supervisor in the permanency unit.             Five years

later, she was transferred to a new supervisory role in the

Division's intake unit.     This position was more challenging than

A.B.'s prior assignments and she was required to work extra hours.

     A.B. testified that she began having panic attacks because

she was "overwhelmed with her work" in the intake unit.                    She

started   seeing   a   psychiatrist,      who    prescribed   a   number    of

medications, including Xanax, Prozac, Wellbutrin, and Abilify.

The Division offered to transfer A.B. to available permanency unit

assignments in neighboring counties, but she decided the positions

were too "far from home" for her.           According to A.B., the panic

attacks continued and she left her job in November 2013 and never

returned.

     On December 3, 2013, A.B. filed an application with the Board

for ordinary disability retirement benefits.          The Board denied the

application, finding that A.B. was not totally and permanently

disabled.    A.B. filed an administrative appeal, which the Board



                                     2                               A-2684-16T3
referred to the Office of Administrative Law for a hearing before

an ALJ.

     At the hearing, A.B. presented testimony from Dr. Edward

Tobe, who was board certified in psychiatry and neurology.        Based

upon his evaluation, Dr. Tobe believed that A.B. may have suffered

from Bipolar Type II disorder for many years, but it was never

diagnosed.   He also diagnosed A.B. with major depressive disorder

with atypical features, and panic disorder.          Dr. Tobe believed

that A.B. was permanently disabled because she was depressed, had

cognitive difficulties, problems organizing her thoughts, and

impaired memory.1

     The Board presented the testimony of Dr. Richard Filippone,

who was accepted by the ALJ as an expert in the field of clinical

psychology without objection by A.B. at the hearing.          Like Dr.

Tobe, Dr. Filippone conducted an evaluation of A.B. and reviewed

her pertinent treatment records.       However, Dr. Filippone concluded

that A.B. was not permanently disabled.

     Dr. Filippone "diagnosed [A.B.] with a history of panic

disorder currently mild without agoraphobia."        He testified that

A.B. told him she had had only one panic attack since she left



1
  A.B.'s husband and two of her former co-workers testified
concerning their observations of A.B.'s behavior during the period
between 2011 and 2013.

                                   3                            A-2684-16T3
work, and was only seeing her therapist every other month for

about twenty minutes per visit.         While she continued to take her

prescriptions, A.B. was not receiving any other therapy.          A.B. was

able to maintain her home, do the shopping and cooking, and assist

her children with their schoolwork.         Under these circumstances,

Dr.   Filippone   found   no   evidence    that   A.B.   was   totally    or

permanently disabled from the performance of her job.

      The ALJ issued an initial decision in which she concluded

that Dr. Filippone's testimony was more persuasive than Dr. Tobe's

testimony.   The ALJ wrote:

           Dr. Tobe's testimony that [A.B.] is totally
           and permanently disabled was not credible. He
           had no explanation for the undisputed fact
           that [A.B.] was fine before she transferred
           to the intake department, and is currently not
           experiencing any significant symptom[s].     I
           further FIND that this indicates that she is
           not   totally    and   permanently   disabled.
           Moreover, [A.B.] only sees a therapist once
           every other month for twenty minutes, and
           there was no testimony as to why she could not
           return and full[y] perform in her old
           position.     [A.B.] did suffer from panic
           attacks and was rendered unable to work for a
           period of time. I FIND that ther[e] was no
           indication that this condition is total and/or
           permanent.   I further FIND that by her own
           admission, [A.B.] was functioning fully in her
           previous position and is now fully functioning
           . . . at home.     I further FIND that [A.B.]
           takes medications prescribed for her anxiety,
           depression and panic attacks, which have been
           effective in treating her condition. I FIND
           that   Dr.  Tobe's    testimony  regarding   a


                                    4                              A-2684-16T3
            permanent disability is unsupported by the
            facts and the evidence in this case.

                 In   contrast,    I   FIND   that   Dr.
            [Filippone's] testimony was credible and
            supported by the facts and evidence in the
            case. I FIND that his conclusion that [A.B.]
            was not totally and permanently disabled was
            credible and supported by the evidence.

       A.B. filed exceptions to the ALJ's initial decision.             The

Board considered the matter at its January 18, 2017 meeting and

decided    to    deny   A.B.'s   application   for   ordinary   disability

benefits.       In its letter of January 19, 2017, which memorialized

its decision, the Board stated that it had adopted the ALJ's

findings of fact and conclusions of law.         This appeal followed.

       On appeal, A.B. asserts that the Board should have disregarded

Dr. Filippone's testimony because he was a psychologist, rather

than a psychiatrist, and his conclusions allegedly represented

mere "net opinions."        She also argues that the weight of the

evidence supported her claim of permanent disability. We disagree.

        Our scope of review of an administrative agency's final

determination is limited.        In re Herrmann, 
192 N.J. 19, 27 (2007).

"[A]    strong    presumption    of   reasonableness   attaches"   to   the

agency's decision.       In re Carroll, 
339 N.J. Super. 429, 437 (App.

Div. 2001) (quoting In re Vey, 
272 N.J. Super. 199, 205 (App. Div.

1993), aff'd, 
135 N.J. 306 (1994)).            The burden is upon the

appellant to demonstrate grounds for reversal.           McGowan v. N.J.

                                       5                           A-2684-16T3
State Parole Bd., 
347 N.J. Super. 544, 563 (App. Div. 2002); see

also Bowden v. Bayside State Prison, 
268 N.J. Super. 301, 304

(App. Div. 1993) (holding that "[t]he burden of showing the

agency's action was arbitrary, unreasonable[,] or capricious rests

upon the appellant").       To that end, we will "not disturb an

administrative agency's determinations or findings unless there

is a clear showing that (1) the agency did not follow the law; (2)

the decision was arbitrary, capricious, or unreasonable; or (3)

the decision was not supported by substantial evidence."          In re

Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 
194 N.J. 413, 422 (2008).

     It is not our place to second-guess or substitute our judgment

for that of the agency and, therefore, we do not "engage in an

independent assessment of the evidence as if [we] were the court

of first instance."        In re Taylor, 
158 N.J. 644, 656 (1999)

(quoting State v. Locurto, 
157 N.J. 463, 471 (1999)).

     With regard to expert witnesses, we rely upon the ALJ's

"acceptance of the credibility of the expert's testimony and [the

judge's] fact-findings based thereon, noting that the [judge] is

better   positioned   to    evaluate   the   witness'[s]   credibility,

qualifications, and the weight to be accorded [to his or] her

testimony." In re Guardianship of D.M.H., 
161 N.J. 365, 382 (1999)

(citing Bonnco Petrol, Inc. v. Epstein, 
115 N.J. 599, 607 (1989)).

                                   6                            A-2684-16T3
      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).

      Applying our highly deferential standard of review, we are

satisfied there is sufficient credible evidence in the record to

support the Board's determination that A.B. failed to show that

she   qualifies    for    ordinary   disability         benefits   pursuant    to


N.J.S.A. 43:15A-42.       The Board adopted the ALJ's findings of fact,

which were based on her assessment of the credibility of the expert

testimony presented by Dr. Tobe and Dr. Filippone, both of whom

she found qualified to render the expert opinions they provided

at the hearing.     We must give appropriate deference to the ALJ's

and the Board's findings where, as here, those findings are based

on sufficient credible evidence in the record.               Taylor, 
158 N.J.

at 658-59.

      Affirmed.

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