                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


PEGGY C. JONES
                                              MEMORANDUM OPINION *
v.   Record No. 1736-99-3                          PER CURIAM
                                               SEPTEMBER 5, 2000
VIRGINIA RETIREMENT SYSTEM


                 FROM THE CIRCUIT COURT OF GILES COUNTY
                          Colin R. Gibb, Judge

            (Roger W. Rutherford; Wolfe & Farmer, on
            brief), for appellant.

            (Mark L. Earley, Attorney General; Michael K.
            Jackson, Senior Assistant Attorney General;
            Brian J. Goodman, Assistant Attorney General,
            on brief), for appellee.


     Peggy Jones appeals an order of the trial court affirming a

decision by the Virginia Retirement System (VRS) denying her claim

for permanent disability retirement benefits.     She contends that

the trial court erred in finding substantial evidence to support

VRS's finding that she failed to prove permanent physical or

psychological disability.      Upon reviewing the records and the

briefs of the parties, we conclude that this appeal is without

merit.   Accordingly, we summarily affirm the trial court's

judgment.    See Rule 5A:27.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     In accordance with well established principles, we view the

evidence in the light most favorable to VRS, the prevailing party

below.   See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,

212, 390 S.E.2d 788, 788 (1990).   So viewed, the evidence

established that Jones worked as a food operations assistant in

the Virginia Polytechnic Institute and State University

cafeteria for twenty-four years.   Her job duties entailed

lifting trays and serving food, requiring that she be able to

bend, stand, and sit.    She last worked in that capacity on

October 2, 1996.

     On November 10, 1995, Jones, then age forty-two, filed an

application with VRS seeking permanent disability retirement

benefits.   She alleged that she had back surgery in 1979 and

could no longer perform her job due to arthritis in her back.

Dr. C.L. Boatwright, who has treated Jones since 1991 for

persistent low back pain, opined that based upon "the

longstanding difficulty and with belief in the patient's

accurate description of her discomfort and with her failure to

respond to conservative treatment, I believe that she is

permanently disabled."

     At the Medical Review Board's request, Dr. Morris E.

McCrary, III, a neurosurgeon, performed an independent

neurological consultation with Jones.   After reviewing Jones's

medical records and examining her, Dr. McCrary reported as

follows:

                                - 2 -
                  Mrs. Jones has a fairly normal
             objective neurological examination. She
             complains of symptoms which sound like
             musculoskeletal spasm. I reviewed the CT
             scan and did not find evidence for
             compression of the neural elements, and I
             think this is consistent with her exam. The
             subjective components of the neurologic
             examination that are positive are the
             sensory findings, so these do not appear
             associated with a single radicular
             distribution. I think she probably thinks
             she may have some musculoskeletal
             complaints, but that these are probably
             still best treated with conservative
             measures of exercise and muscle
             anti-spasmodics. At present, I do not find
             evidence for dysfunction or disability that
             would place limitations on her activities
             nor permanently prevent her from performing
             the job duties as described for a food
             operations assistant at Virginia Tech.

     The Board reviewed Dr. Boatwright's opinion and Dr.

McCrary's opinion and recommended that the application be

denied.   By letter dated February 22, 1996, VRS denied Jones's

application for permanent disability benefits.    Jones appealed

that decision to the VRS for review.

     On appeal, Jones submitted additional medical records from

Dr. Boatwright, including his February 13, 1996 office notes,

which reported as follows:    "[Jones] does have a chronic low

back condition with degenerative joint disease.    Past history of

disc surgery and some bulging discs by x-rays.    She thinks that

she cannot work any longer than 4 hours because of excruciating

back pain.    There is no definite radiation of the pain into her

legs."    On March 18, 1996, Dr. Boatwright noted that although


                                - 3 -
Dr. Siegel advised Jones to have physical therapy, she "does not

want to do this, saying it will not do any good."   Relying upon

the Board's recommendation and Dr. McCrary's opinion, VRS denied

Jones's application.   VRS noted that the additional evidence

submitted by Jones did not reveal evidence of a permanently

disabling condition.   Jones appealed that decision, requesting

an informal fact finding hearing.

     At the hearing, Jones described her back symptoms and the

limitations they have placed upon her life.   Jones also

submitted an April 23, 1996 report from Dr. James Vascik, a

neurosurgeon who examined Jones upon referral from Dr.

Boatwright.   In an April 23, 1996 letter to Dr. Boatwright, Dr.

Vascik reported the following:

               [Jones] is of the opinion that she just
          can't work and wanted to know what she could
          do about her back pain. Other than to stay
          active and exercise, I have nothing further
          to offer. I told her she should also follow
          the recommendation of Dr. Siegel and
          yourself to participate in a formal therapy
          program and to be taught a home program.
          However, to be certain there is nothing
          going on that the CT does not show, I am
          going to get an MRI and an EMG and nerve
          conduction velocity.

The MRI was normal except for some minor scar tissue from

Jones's previous surgery.   Dr. Vascik did not see a ruptured

disc or any pressure on the nerve roots.   The EMG study was

normal, showing no evidence of any permanent nerve damage.




                                 - 4 -
     In a January 14, 1997 evaluation, Dr. Boatwright noted that

"[t]his patient has been seen by multiple specialists and has

had some physiotherapy.    All of this is without relief.    I have

difficulty correlating the degree of her pain and disability

with the physical findings . . . .       I would suggest that an

unbiased orthopedic specialist fully evaluate this patient."

     In addition to these medical records, Dr. Philip B.

Robertson reported his findings based upon a January 10, 1997

independent psychiatric evaluation.      Dr. Robertson diagnosed

Jones as suffering from adjustment disorder with mixed anxiety

and depressed mood and pain disorder associated with both

psychological factors and a general medical condition.      Dr.

Robertson opined that Jones's "present psychiatric impairments

are a contributing factor to her disability but by themselves

would not preclude her functioning in some occupational

capacity."

     Dr. Kenneth W. Gray, an orthopedist, reviewed Jones's

medical records, examined her upon VRS's request, and reported

as follows:

             It is my impression that this patient is
             probably permanently disabled from doing any
             type of productive work activity based on
             her history and her inability to work for
             well over a year. This on clinical
             examination, however, we see no objective
             findings which would indicate a reason why
             this patient was not able to perform normal
             work activities and/or activities of daily
             living. . . . This appears to be primarily
             myofascial. . . . [T]his far down the line,

                                 - 5 -
           the patient probably would need more
           extensive pain clinic type setting and more
           extensive rehabilitation to get her back to
           work activities. . . .

                . . . [W]e see no objective findings
           which would prevent her from strengthening
           her back and return back to a normal
           activities of daily living and normal work
           activities . . . . Specifically, this
           appears to be a fairly minimal injury. The
           type of work activity that she has described
           appears to be reasonably light.

     After the informal fact finding conference, the hearing

officer issued a written opinion rejecting Dr. Boatwright's

opinion and relying upon the medical records and findings of

Drs. McCrary, Vascik, Robertson, and Gray.     Finding that Jones

was not permanently disabled, the hearing officer noted that

"[o]bjective studies and diagnosis by [the] other doctors do not

support Dr. Boatwright's finding of permanent disability."

     On June 9, 1997, VRS issued its final case decision denying

Jones's application.    Jones appealed that decision to the trial

court.   On September 30, 1999, the trial court held that

substantial evidence in the record supported VRS's denial of

benefits and affirmed VRS's decision.    Jones appealed that

judgment to this Court.

                          Standard of Review

     "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.   VRS is required to use a

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

                                - 6 -
likely to be permanent."   Code § 51.1-156(E)(ii).   Our review of

this determination concerns whether substantial evidence in the

agency record supports the holding of the administrative agency.

See Code § 9-6.14:17.   "The phrase '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).

     Applying the applicable standards of review to the record

made before the VRS, we hold that VRS, as fact finder, was

entitled to reject Dr. Boatwright's opinion and to give more

probative weight to the medical records and opinions of Drs.

McCrary, Gray, Vascik and Robertson.   "The appellate court does

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

make its own determination of the credibility of the witnesses."

Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).   The VRS's resolution of conflicting medical

opinions is a factual determination.    See Johnson v. Virginia

Retirement System, 30 Va. App. 104, 111, 515 S.E.2d 784, 788

(1999) ("observ[ing] that '[t]he deference that we give to the

[agency's] fact finding on medical questions is based upon the

"unwisdom of an attempt by . . . [courts] uninitiated into the

mysteries [of the medical science debate] to choose between

conflicting expert medical opinions."'").   None of Jones's doctors

found any objective basis or explanation for the severity of her

                               - 7 -
subjective symptoms.   Guided by the "substantial evidence"

standard of review, we hold that the medical reports and opinions

of Drs. McCrary, Gray, Vascik, and Robertson, when considered with

the entire record, are sufficient to support VRS's decision.

Thus, the trial court did not err in affirming VRS's denial of

permanent disability retirement benefits to Jones.

     For these reasons, we affirm the judgment of the trial court.

                                                          Affirmed.




                               - 8 -
