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

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 , As sistant Attorney General , of counsel ; Paul Davis , Deputy Attorney General , on the brief).

PER CURIAM NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court

. "
A lthough 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.

December 4 , 2017A

- 5071

- 15T1 2 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.

A fter working as a probation officer in various capacities

for the New Jersey Office of Probation Services for

approximately fifteen years 1 , 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. T he 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 befor e 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.A

- 5071

- 15T1 3 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

ben efits. Hanley opined petitioner ' s health conditions kept him

from meeting his job requirements because ,

a t 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 , p articipated 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 sinc e 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 backA

- 5071

- 15T1 4 condition that account ed 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

credit ed Berman ' s opinion , and further determined there was

insufficient e vidence 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 ordina ry

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 an d 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.A

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- 15T1 5 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 c onsider 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 t heir 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 incapacitat ed from performing his

or her duties. The member must establish an incapacity to

perform duties in the general area of his or her ordinary

empl oyment , 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).A

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- 15T1 6 Having considered petitioner ' s arguments in light of the

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

supported by su fficient 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 th e 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 o pinion. R. 2:11

- 3(e)(1)(E).

Affirmed.