COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

RUTH A. FIFER 

 MEMORANDUM OPINION*

v. Record No. 2924-97-3 PER CURIAM 

 AUGUST 25, 1998 

VIRGINIA RETIREMENT SYSTEMS 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

John J. McGrath, Jr., Judge 

 (Grant A. Richardson, on brief), for 

appellant. 

 (Mark L. Earley, Attorney General; Michael K. 

Jackson, Senior Assistant Attorney General & 

Chief; Brian J. Goodman, Assistant Attorney 

General, on brief), for appellee. 

 Ruth A. Fifer, appellant, was denied disability retirement 

from the Virginia Retirement System (VRS) pursuant to Code 

§ 51.1-156(E). On appeal, appellant contends that there was 

insufficient evidence in the record to support the VRS's decision 

that her disability was not likely to be permanent. Because we 

find that there is substantial evidence to support the VRS's 

finding, we summarily affirm. See Rule 5A:27. 

Background

 Appellant was employed as a school teacher for about thirty 

years when she obtained an unpaid leave of absence to care for 

her elderly parents. During the leave of absence, appellant had 

one or more operations for various sinus conditions. On April 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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20, 1996, in her first application for disability, appellant 

asserted that she suffered from fibromyalgia and leukoaraiosis. 

She stated that she was unable to perform her teaching duties 

because she was in bed eighteen hours per day, she suffered 

dizziness, nausea, constant body aches, chronic fatigue, 

unpredictable vision, uncontrollable seizure-like chills, 

fluctuating fever, thumping headaches, watery diarrhea, and 

dry-mouth. She also said that she was unable to concentrate. 

Reports from her treating neurologist, Glen E. Deputy, M.D., 

confirmed most of these complaints. 

 On June 6, 1996, the VRS denied appellant disability based 

on the Medical Board's finding that "[n]o evidence of disabling 

disease is presented." The Medical Board also found that 

appellant was not "felt to be permanently disabled." Appellant 

appealed this decision, and the Medical Board requested that 

Morris E. McCrary, III, a neurologist, examine appellant. 

 Dr. McCrary examined appellant on or about September 17, 

1996. He noted that she reported a large number of complaints, 

but that she had "a relatively normal objective neurologic 

examination." He further stated: 

 I am hard pressed to say that I have physical 

findings, consistent history or studies that 

would denote a degree of function or specific 

limitation that would permanently prevent her 

from performing her duties as a teacher as 

described in her disability information 

questionnaire. As to the question of chronic 

fatigue syndrome and fibromyalgia, I find 

little to support this, but I would defer to 

evaluation by a qualified rheumatologist if 

indicated. 
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 The VRS again denied appellant's request for disability 

benefits based on the Medical Board's recommendation, and 

appellant appealed. On April 2, 1997, an informal fact-finding 

hearing was held. The hearing examiner examined medical records 

and heard oral testimony from appellant and another witness who 

had observed appellant's behavior over the past eight years. 

 Appellant presented evidence of treatment notes and 

diagnoses performed by Dr. Deputy. Dr. Deputy opined that 

appellant suffered from fibromyalgia, carpal tunnel syndrome, 

chronic fatigue syndrome, and neuropathy. However, Dr. Deputy 

did not state whether, in his opinion, her illnesses were 

permanent in nature. Over the course of his treatment of 

appellant, Dr. Deputy prescribed numerous medications for 

appellant, many of which appellant claimed caused side effects. 

He noted after her April 18, 1996 visit, that he was "hopeful we 

can get her feeling better over the next few months." His notes 

from February 20, 1997 indicated that her "[r]ight peroneal 

neuropathy, [had] improved from a previous study obtained last 

April." He also stated in this report that "[h]er conditions are 

improving" and that she was "improving symptomatically" with the 

use of a certain prescription, with which he continued to treat 

appellant. 

 On December 6, 1996, Carolyn M. Brunner, M.D., a 

rheumatology specialist, examined appellant. Dr. Brunner did not 

comment on the permanency of appellant's condition, but noted 
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that she found "no gross motor or sensory deficits." She also 

recommended a continuation of appellant's "supportive care" and 

suggested that appellant begin an exercise program. 

 Appellant also presented evidence of her treatment by John 

T. Glick, M.D., who administered acupuncture treatments on 

appellant. In a letter to appellant's counsel, Dr. Glick wrote: 

 As my approach to [appellant's] complaints 

was based on the acupuncture model of health 

and illness, the information you request is 

not likely to be of use to you. Be that as 

it may, I certainly can speak to the high 

degree of disability that she experiences and 

the weakness along with diminished vitality 

she evidences. She is, by my experience with 

her, unable to do more than sedentary 

activity and ambulates very slowly with a 

cane. Unless breakthroughs in the treatment 

of fibromyalgia and chronic fatigue occur, I 

feel she is permanently disabled. 

 Appellant also presented evidence from her family doctor, 

D.L. Perry, M.D. On March 28, 1997, Dr. Perry wrote, "It is my 

opinion that [appellant] is fully disabled at this time and most 

likely will continue well into the future unless technology 

advances to the point where these conditions can be treated 

successfully." 

 Pamela Collins, a home health care nurse, testified at the 

hearing. Collins had never treated appellant, but had been to 

her home approximately every other week for eight years, treating 

appellant's bedridden father. Collins opined that appellant was 

totally disabled, but did not comment on the permanency of her 

condition. 
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 The hearing officer found that, while the medical evidence 

was "not overwhelming," it evidenced problems that appellant was 

experiencing. He found that "[t]he problem is that her 

physicians can't find the correct combination of treatment in 

which to help her." The hearing officer also found that, while 

the evidence showed that appellant was unable at that time to 

return to her position, "it is not clear that her condition is 

one of permanency." Thus, the hearing officer found that 

appellant failed to carry her burden of proof to show that her 

incapacity is "likely to be permanent." See Code 

§ 51.1-156(E)(ii). 

 On June 11, 1997, the VRS again denied appellant disability 

benefits. Appellant appealed this decision to the circuit court. 

 The trial court stated: 

 In reviewing the agency record in this 

case, it is clear that there are two somewhat 

opposed views on the question of the 

permanency of [appellant]'s disability. Her 

treating neurologist, Dr. Deputy, and the 

specialist[s] to whom she's been referred, 

Dr. McCrary and Dr. Brunner, have never 

opined that her disability is permanent in 

nature. In fact, the totality of their 

medical records appears to basically analyze 

the multitudinous complaints of [appellant] 

and conclude that they do not appear to be 

based on any objective findings and have 

proven to be resistant to any drug regimens 

that have been prescribed to her. . . . The 

conclusion of these doctors appears to be as 

stated in the record, that since they cannot 

really determine the exact identity of the 

medical illnesses of which [appellant] is 

suffering, they do not have the requisite 

knowledge upon which to base a conclusion 

that the disability is permanent. 

 The evidence on the opposite side 
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consists of Dr. Glick, the family 

practitioner and acupuncturist, who 

administered a regimen of acupuncture 

treatment to [appellant] and based on his 

observations of [appellant] during that 

period of time concluded that she was in all 

likelihood permanently disabled. Dr. Perry, 

the general practitioner, who was her 

personal physician, also rendered a short 

opinion to the effect that he thought her 

disability was permanent. 

 Therefore, the record is clearly one 

where there i[s] considerable evidence on 

both sides of the issue of whether or not the 

disabilities currently being suffered by 

[appellant] are permanent in nature. The 

Medical Review Board of the VRS has reviewed 

the record on three separate occasions and 

each time has concluded that there is no 

medically sufficient evidence to prove 

disability. The VRS has, in turn, adopted 

the position of the Medical Review Board and 

denied the disability benefits. 

 The trial court concluded that there was substantial 

evidence in the record upon which the VRS could base a denial of 

appellant's claim. Therefore, the trial court denied appellant's 

appeal. 

Analysis

 "The burden shall be upon the party complaining of agency 

action to designate and demonstrate an error of law subject to 

review by the court." Code § 9-6.14:17. The VRS is required to 

use a Medical Board to certify that a claimant's disability "is 

likely to be permanent." Code § 51.1-156(E)(ii). Our review of 

this determination asks only whether there was substantial 

evidence in the agency record to support the holding of the 

administrative agency. See Code § 9-6.14:17. "The phrase 
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'substantial evidence' refers to 'such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.'" Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 

269, 308 S.E.2d 123, 125 (1983) (citation omitted). 

 Dr. Glick was the only physician who opined that appellant 

was permanently disabled. However, he qualified his opinion, 

stating that it was based on "the acupuncture model of health and 

illness." Dr. Perry opined that appellant was "fully disabled at 

this time and most likely will continue well into the future." 

However, this opinion falls short of a conclusion that 

appellant's incapacity is "likely to be permanent." Dr. McCrary 

was "hard pressed to say that [he] had physical findings, 

consistent history or studies that would denote a degree of 

function or specific limitation that would permanently prevent 

[appellant] from performing her duties as a teacher . . . ." 

Also, Drs. Deputy and Brunner did not opine that appellant's 

disability was permanent in nature. In fact, Dr. Deputy's notes 

of February 20, 1997 indicated that appellant showed improvement 

in certain conditions. 

 The VRS chose to believe the opinions of Drs. McCrary and 

Deputy and to lend less weight to Dr. Glick's opinion, as it was 

entitled to do. See Wagner Enters., Inc. v. Brooks, 12 Va. App. 

890, 894, 407 S.E.2d 32, 35 (1991) ("[T]he appellate court does 

not retry the facts, reweigh the preponderance of the evidence, 

or make its own determination of the credibility of the 
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witnesses."). The opinions of Drs. McCrary and Deputy are 

adequate to support the VRS's decision. 

 For the foregoing reasons, the denial of claimant's 

application for disability retirement is affirmed. 

Affirmed.