On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS #766579.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Haas.
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.
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 ...