Opinion
DOCKET NO. A-1518-12T2
08-06-2014
CYNTHIA MILLER, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.
Alisa C. Boll argued the cause for appellant (Stark & Stark, attorneys; Ms. Boll, on the brief). Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall & Waugh. On appeal from the Board of Trustees, Public Employees' Retirement System. Alisa C. Boll argued the cause for appellant (Stark & Stark, attorneys; Ms. Boll, on the brief). Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief). PER CURIAM
Petitioner Cynthia Miller appeals the final administrative agency decision of respondent Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying her application for an ordinary disability pension. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Miller was employed by the New Jersey State Parole Board (NJSPB) for twenty-four years, during which time she worked in a variety of typist and data entry positions. As a NJSPB employee, Miller was a member of PERS. In March 2011, she applied for an ordinary disability retirement pension, alleging disability arising from debilitating pain, physical limitations, and nerve issues resulting from three neck surgeries, bilateral carpal tunnel surgeries, and right shoulder surgery, as well as lower back pain. Miller alleged that she was totally disabled from fulfilling her job responsibilities at NJSPB.
The Board denied Miller's application in August 2011. Following the Board's denial of her application for reconsideration, Miller appealed the decision. The Board transferred the case to the Office of Administrative Law (OAL) as a contested case in January 2012.
An administrative law judge (ALJ) heard testimony on two hearing days in June and July. Miller testified that, during her employment by NJSPB, she had been responsible for data entry and verification functions. She also provided support for parole officers who were assigned a caseload of individuals released from correctional facilities. Miller worked from 8 a.m. to 4 p.m., including an hour for lunch and two fifteen-minute breaks. She testified that she rarely took breaks because of her volume of work. Her job duties required Miller to be in front of a computer for ninety-percent of her working day.
Miller described three neck surgeries since 2004. In June of that year, a plate was placed in her cervical spine. In 2008, because her neck continued to bother her, she had two other surgeries to remove a bone spur and tighten the plate, which had become loose. Miller was on medical leave from October 2008 through February 2009 due to the surgeries.
Miller testified she experiences almost constant neck pain, spasms on the left side of her head, pain between her shoulder blades when lifting her arms, restriction when lifting her head backwards, some restriction when leaning forward, pain when she turns her head to the left side, and pain when she leans over. She testified that she often becomes so worried about the head numbness, that she has anxiety and panic attacks.
Miller also underwent bilateral carpal tunnel releases due to wrist pain and numbness in 2008. Despite the surgery, Miller testified that her carpal tunnel syndrome has returned. She has difficulty grasping items, and repetitive activity causes her hands to go numb and start to shake.
Miller also testified concerning shoulder surgery, which was performed because her arthritis and progressive bursitis were aggravated after she was hit by a heavy door. She described lower back pain from bulging lumbar discs and the early stages of stenosis in that area. She also underwent ankle surgery for arthritis, and was told that she will eventually need a total ankle replacement.
According to Miller, she found it intolerable to work at a computer desk and keyboard for eight hours a day. She needed to get up from the desk and change positions so often that it interfered with her ability to get her work done. She testified that even her fifteen-minute commute to work was fatiguing her neck, which made her feel she needed to lie down. Miller described difficulty getting out of bed in the morning, which often causes her neck to lock up. She was given a neck brace, but her doctor advised her not to use it too often because she could become dependent on it.
The parties relied on medical reports and testimony from their experts. Miller was examined by David Weiss, D.O., her expert, and Jeffrey Lakin, M.D., the Board's expert. Weiss concluded that the "sum total of her musculoskeletal conditions involving the cervical spine, right shoulder, bilateral ulnar nerves, bilateral carpal tunnel syndrome, . . . as well as the lumbar spine have had a direct impact upon [Miller's] abilities to perform her activities of daily living." He further opined that Miller was totally and permanently disabled from performing her necessary job functions and requirements as a principal data machine operator at NJSPB, because of her many musculoskeletal issues.
Lakin concluded that Miller was "neurologically intact and has no motor or sensory deficits in the upper or lower extremities." Based upon the lack of objective evidence of any permanent neurological or physiological impairment, Lakin concluded that Miller had excellent function in her upper extremities. Lakin reviewed additional medical reports and prepared two addenda to his report prior to the OAL hearing. In the addenda, Lakin opined that Miller was not totally and permanently neurologically disabled from the performance of her regular and assigned job duties.
The ALJ issued her initial decision on September 24, 2012. She described Miller as "genuine and sincere" in her testimony. She concluded, however, that sincerity of subjective symptoms, especially with respect to pain for which different people have different levels of tolerance, "by itself does not necessarily support a legal finding of ordinary disability." In balancing the strength of the competing expert testimony, the ALJ found that the scales tipped in favor of Lakin because he was an active orthopedic surgeon and Weiss's opinion was based largely on subjective factors and complaints.
The ALJ found, by a preponderance of the competent factual and expert medical evidence, that Miller was not disabled from performing data entry functions as a result of her complaints concerning her wrists, elbows, or lower extremities. She further found that Miller had not met her burden of proving that she suffers from permanent disability resulting from the March 2010 ankle surgery.
The ALJ described the issue of Miller's neck pain as more complicated, characterizing Miller's testimony as subjective. She also found that Miller had "a very low threshold for pain and discomfort, which [was] very real to her, but that the objective evidence [did] not support [her] complaints."
Based upon her review of the evidence, the ALJ concluded that Miller had failed to meet her burden to prove, by a preponderance of the credible evidence, that she was totally and permanently disabled from the performance of her regular and assigned duties. Consequently, she determined that the Board's denial of Miller's application for ordinary disability retirement benefits was appropriate.
On October 17, 2012, the Board considered the exhibits and the ALJ's initial decision, as well as the exceptions filed by Miller. On October 18, the Board adopted the ALJ's initial decision and again denied Miller's application. This appeal followed.
II.
On appeal, Miller argues that the Board's decision was arbitrary, capricious, and unreasonable because (1) the ALJ gave too much weight to the credentials and opinion of the Board's expert and (2) the ALJ's findings of fact are not adequately supported in the record. Miller also argues that the decision should be reversed because the Social Security Administration determined that she is totally disabled in a decision made after the Board denied her application following the OAL hearing.
A.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a "strong presumption of reasonableness" to the agency's exercise of its statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should 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 Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). Nevertheless, an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).
In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
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 for 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., 404 N.J. Super. 119, 130-31 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009).
B.
Having reviewed the record on appeal, we are satisfied that Miller has failed to demonstrate that the Board's decision, based upon its adoption of the ALJ's initial decision, is arbitrary, capricious, or unreasonable or that it was not supported by substantial credible evidence in the record.
The ALJ heard testimony from two physicians who were board certified in orthopedic surgery. They reached different conclusions with respect to the extent of Miller's disability. Although Weiss testified to his opinion that she was disabled within the meaning of N.J.S.A. 43:15A-42, Lakin reached the opposite conclusion. The ALJ heard them testify and had the opportunity to review their reports. She found Lakin's testimony more persuasive for two reasons.
First, the ALJ considered Lakin the more qualified expert because he was an active orthopedic surgeon. Weiss, who had a similar board certification, nevertheless testified that he does not "hold [himself] out as an orthopedic surgeon." He explained that he does not do surgery. Second, the ALJ noted that, in contrast to Weiss, Lakin relied more on objective findings and less on Miller's subjective statements. We find no basis to conclude that the ALJ's reasons were arbitrary or otherwise improper and reject Miller's contention that they were.
We similarly reject Miller's argument that Lakin's report amounted to a net opinion. N.J.R.E. 703 requires that an expert's opinion be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing." "The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (citing Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities." Vuocolo, supra, 240 N.J. Super. at 300. It requires an expert "to give the why and wherefore" of his or her opinion rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).
Our review of the record confirms that Lakin outlined the results of his examination and reviewed the records and related them to his opinion in his initial and two supplemental reports, as well as his testimony. We also note that Miller did not object to Lakin's qualifications or the nature of the report before the ALJ.
We are also convinced that the ALJ's initial decision, and hence the Board's final decision, finds substantial support in the record. The ALJ engaged in a detailed discussion and evaluation of the medical evidence. Even if we might have reached a different decision, our standard of review requires us to uphold the Board's decision because there is no basis for us to conclude that it is "arbitrary, unreasonable, or capricious," In re Application of Virtua-West, supra, 194 N.J. at 422, or "manifestly mistaken," L.M., supra, 140 N.J. at 490.
We grant the Board's application to exclude from the record the finding by an ALJ for the Social Security Administration that Miller qualifies for Social Security disability benefits. That decision, made in February 2013, postdated the final agency decision now on appeal. It was not before the ALJ or the Board and is not appropriately part of the record on appeal. R. 2:5-4(a). In any event, it has not preclusive effect with respect to the issue of Miller's entitlement to a PERS disability pension. Villanueva v. Zimmerman, 431 N.J. Super. 301, 311-13 (App. Div.), certif. denied, 216 N.J. 430 (2013). It demonstrates that two ALJs, viewing some of the same evidence but administering different programs, reached different results. Even if it were a part of the record, it would not be a basis to overturn the Board's decision because, as we have held, that decision is consistent with the statute that governs the Board's decision making and satisfies our standard of review.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION