MICHAEL MASSARO VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM(BOARD OF TRUSTEES, 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NOT FOR PUBLICATION WITHOUT THE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."
Although it is posted on the internet, this opinion is binding only on the
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-5071-15T1

MICHAEL MASSARO,

Appellant,

v.

PUBLIC EMPLOYEES' RETIREMENT
SYSTEM,

Respondent.

__________________________________

Submitted August 8, 2017 – Decided December 4, 2017

Before Judges Sabatino and O'Connor.

On appeal from the Board of Trustees of the
Public Employees' Retirement System, Docket
No. PERS #2-10-281668.

William B. Hildebrand, attorney for
appellant.

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Paul
Davis, Deputy Attorney General, on the
brief).

PER CURIAM
 Petitioner Michael Massaro appeals from the Public

Employees' Retirement System Board of Trustees' final

administrative determination he is not entitled to receive

ordinary disability retirement benefits. We affirm.

After working as a probation officer in various capacities

for the New Jersey Office of Probation Services for

approximately fifteen years1, petitioner, then seventy years of

age, applied for ordinary disability retirement pursuant to

N.J.S.A. 43:15A-42. This statute provides an eligible member is

entitled to ordinary disability retirement benefits if he or she

is physically or mentally incapacitated from performing his job

duties. Ibid. The Board of Trustees denied petitioner's

application because he did not meet the latter standard.

Petitioner filed an administrative appeal, and the Board of

Trustees referred the matter to the Office of Administrative Law

for a hearing before an administrative law judge (ALJ). During

that hearing, petitioner testified he suffered from various

afflictions he claimed were disabling. These included herniated

disks, hypertension, hypothyroidism, an enlarged prostate,

gastroesophageal reflux disease, tinnitus, and emotional stress.

1
Before he commenced working as a probation officer in New
Jersey, petitioner was a probation parole officer for the
Philadelphia Probation Office for thirty years.
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 Petitioner called his treating physician, Thomas Hanley,

M.D., a board certified family practitioner, to corroborate his

testimony and establish his entitlement to ordinary disability

benefits. Hanley opined petitioner's health conditions kept him

from meeting his job requirements because,

at certain times, the pain that [petitioner]
was in, the medicines he was taking and
. . . certainly the stress both on the job
and at home, along with his . . . high level
of commitment to the job [made him feel] as
though he could [not] do the job as well as
he felt it was necessary.

Hanley stated petitioner's disability was a combination of all

of his afflictions, but his back condition was a "significant

aggravating factor."

Hanley testified petitioner was first diagnosed with

herniated disks in 2008, for which he received injections into

the afflicted area of the spine, participated in physical

therapy, and took pain medication. In 2013, petitioner again

complained of back pain, but Hanley conceded there were no

objective findings to corroborate petitioner's complaints of

pain and, other than taking pain medication as needed,

petitioner had not had any treatment to his back since 2008.

PERS presented the testimony of board certified orthopedic

surgeon Arnold Berman, M.D., who opined there was no objective

evidence petitioner ever had a herniated disk or any back
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condition that accounted for his complaints of back pain in

2013. Berman also noted there was no change in any of the

radiologic findings between 2008 and 2013, indicating there was

no progressive loss of function over such time period.

Based on his review of the evidence, the ALJ rejected

Hanley's opinion petitioner suffered from an orthopedic ailment

which incapacitated him from performing his job duties, because

such opinion was not based upon objective findings. The ALJ

credited Berman's opinion, and further determined there was

insufficient evidence petitioner's non-orthopedic ailments

precluded him from working.

Petitioner filed exceptions to the ALJ's decision. PERS

adopted the ALJ's recommendation and reaffirmed the PERS Board's

determination petitioner was not entitled to receive ordinary

disability retirement benefits. This appeal ensued.

Petitioner argues PERS erred in denying his application for

ordinary disability retirement benefits because the ALJ failed

to: (1) give sufficient weight to Hanley's opinion petitioner is

totally and permanently disabled; (2) recognize petitioner's

pain and stress prevented him from performing his normal job

functions; and (3) consider petitioner's extensive medical

history.

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 The scope of our review in an appeal from a final decision

of an administrative agency is strictly limited. 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). In doing so, we

give "due regard to the opportunity of the one who heard the

witnesses to judge of their credibility[.]" Ibid. (quoting Close

v. Kordulak Bros., 44 N.J. 589, 599 (1965)). 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, supra, 199 N.J. at 9.

In order to qualify for ordinary disability retirement

benefits under N.J.S.A. 43:15A-42, a member of PERS must

establish by a preponderance of the credible evidence that he or

she is physically or mentally incapacitated from performing his

or her duties. The member must establish an incapacity to

perform duties in the general area of his or her ordinary

employment, rather than merely show an inability to perform his

or her specific job. Bueno v. Bd. of Trustees, Teachers'

Pension & Annuity Fund, 404 N.J. Super. 119, 130-31 (App. Div.

2008), certif. denied, 199 N.J. 540 (2009).
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 Having considered petitioner's arguments in light of the

record and our standard of review, we conclude PERS' decision is

supported by sufficient credible evidence on the record as a

whole. R. 2:11-3(e)(1)(D). PERS adopted the ALJ's findings of

fact, which were based on his assessment of the expert testimony

presented by Dr. Hanley and Dr. Berman. We must give

appropriate deference to the ALJ's and PERS' findings where, as

here, those findings are based on sufficient credible evidence

in the record. In re Taylor, 158 N.J. 644, 658-59 (1999).

Petitioner's arguments are without sufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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