                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia


CHARLOTTE D. MEADOWS
                                             MEMORANDUM OPINION * BY
v.   Record No. 1214-97-2                   JUDGE JAMES W. BENTON, JR.
                                               JANUARY 27, 1998
VIRGINIA RETIREMENT SYSTEM


          FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                           Jay T. Swett, Judge
              Robert L. Flax for appellant.

              John Patrick Griffin, Assistant Attorney
              General (Richard Cullen, Attorney General;
              Michael K. Jackson, Senior Assistant Attorney
              General, on brief), for appellee.



      The Virginia Retirement System ruled that Charlotte D.

Meadows failed to prove that her incapacity from work was "likely

to be permanent."     Code § 51.1-156(E).     On this appeal from a

circuit court judgment that affirms that decision, Meadows

contends that the record does not contain substantial evidence to

support the retirement system's decision.       We affirm the

judgment.

      From August 1974 until October 1994, Meadows was employed at

the University of Virginia Hospital as a clinical nutritionist.

In October 1994, she applied for disability benefits alleging

multiple medical problems including chronic fatigue syndrome,

sacroiliitis, fibromyalgia, allergic rhinitis and chronic sinus

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
infection.   After a review of the medical and other records, the

retirement system's medical board found that the data "are

insufficient to suggest that [Meadows] is permanently disabled

from performing the duties of her present occupation."     The

medical board recommended that the retirement system deny

Meadows' application.    See Code § 51.1-124.23.    When Meadows

requested reconsideration of that decision, the medical board

reviewed additional medical data that Meadows submitted and again

found that she was not disabled for work.    Meadows appealed that

decision.
     In accordance with the provisions of the Administrative

Process Act, see Code § 9-6.14.1, et seq., the retirement system

designated a hearing officer to conduct a hearing and submit a

recommendation.    See Code § 9-6.14:12.   Following a hearing at

which Meadows was the only witness, the hearing officer

considered the evidence, including her testimony and the medical

records, and found "that . . . the evidence is not sufficient to

show that . . . Meadows is physically incapacitated from the

performance of her duties as a nutritionist."      Based on the

hearing officer's findings, the director of the retirement system

ruled "that the medical evidence has not proven that [Meadows']

incapacity is 'likely to be permanent,' as required by [Code

§] 51.1-156E."    When Meadows appealed that decision to the

circuit court, the trial judge affirmed the agency's decision.

     The parties agree that Meadows bears "[t]he burden . . . to



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designate and demonstrate an error of law" and that the issue of

law on this appeal is "the substantiality of the evidential

support for findings of fact."    Code § 9-6.14:17.   Thus, the

following principles govern our review:
               The standard of review is well defined
          under the VAPA and case decisions. Where the
          issue is the substantiality of the evidential
          support for findings of facts, "the sole
          determination by the reviewing court . . . is
          whether there was substantial evidence in the
          agency record to support the agency
          decision." "The phrase 'substantial
          evidence' refers to 'such relevant evidence
          as a reasonable mind might accept as adequate
          to support a conclusion.'" "[T]he court may
          reject the agency's findings of fact 'only
          if, considering the record as a whole, a
          reasonable mind would necessarily come to a
          different conclusion.'" This standard "is
          designed to give great stability and finality
          to the fact findings of an administrative
          agency."
               The determination of an issue of fact is
          to be made solely on the basis of the whole
          evidentiary record provided by the agency and
          the reviewing court is limited to that agency
          record. "A reviewing court may not, however,
          use its review of an agency's procedures as a
          pretext for substituting its judgment for the
          agency on factual issues decided by the
          agency." A reviewing court "must review the
          facts in the light most favorable to
          sustaining the [agency's] action," and "take
          due account of the presumption of official
          regularity, the experience and specialized
          competence of the agency, and the purposes of
          the basic law under which the agency has
          acted."

Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 262-63, 369

S.E.2d 1, 18-19 (1988) (citations omitted).

     In pertinent part, the evidence before the hearing officer

proved that Meadows' duties as a clinical nutritionist included



                                 - 3 -
providing patients with nutritional assessments, assessing

patients' nutritional risks, determining patients' dietetic

needs, and determining whether patients needed special feeding

apparatus.   Meadows saw numerous patients located in different

wings and different floors of the hospital.   She used a motorized

cart to carry her materials with her.   In performing her job,

Meadows consulted with doctors and nurses and also evaluated and

observed the training of dietetic students.
     On September 30, 1994, Meadows' supervisor noted that

Meadows' quality of work "Does Not Meet Minimum Expectations" and

indicated that Meadows would be removed from service if she did

not improve.   The supervisor also noted that Meadows had been

removed from all non-essential duties and that staff criticism

outweighed praise.

     Meadows testified that she was significantly fatigued at

work and that she informed her supervisor of her daily fatigue.

She testified that she had hip pain with any extended walking and

was currently on an exercise plan and pool therapy which helped

alleviate some of her pain.   She further testified that her

cognitive abilities had deteriorated, that she would often forget

things, and that she had difficulty concentrating on tasks.

     The medical records established that Meadows saw a number of

doctors for assessment of her physical and mental complaints.

Her treating physician, Dr. Samuel D. Caughron, opined that

Meadows had chronic fatigue syndrome, recurrent sinusitis,




                               - 4 -
sacroiliitis, and cervical nerve root impingement.   He stated

that chronic fatigue syndrome is "poorly understood" and that

Meadows had "some areas of improvement and at times worsening

which requires work adjustment."   He opined, "I would expect her

to be able to fulfill the duties required of her according to her

job description if accommodations can be made."   He recommended

that she walk as little as possible and have two consecutive days

of rest during the work week.   He also reported that her

sacroiliitis is chronic.
     Upon a referral from Dr. Caughron, Dr. Paul C. Wilkins, a

psychiatrist, examined Meadows and concluded that Meadows had an

adjustment disorder with mixed emotional features.   Robert

Diamond, Ph.D., a neuropsychologist, also evaluated Meadows at

Dr. Caughron's request and issued his report.   His findings

included the following:
          Neuropsychological evaluation was consistent
          with deficits in attention, sustained
          concentration, and motor speed . . . . Her
          pattern of deficits on neuropsychological
          testing was consistent with the performance
          of many patients with chronic fatigue. On
          the personality inventory there were
          indications of preoccupation with physical
          problems, and it is possible that her somatic
          symptoms will increase when distressed.
          There is also a potential that her symptoms
          of dysphoria and anxiety were under-reported.
               Test findings were discussed with the
          patient. She was encouraged to further
          discuss the possibilities of attempting a
          trial of antidepressant therapy with her
          physician. Her current psychotherapeutic
          efforts (individual and group) were strongly
          encouraged.




                                - 5 -
In a later report, Dr. Diamond opined that these deficits were

permanent within the context of Meadows' chronic fatigue

syndrome.   However, he further noted that he was not competent to

address the likely permanence of her chronic fatigue syndrome.

     Dr. John M. Carpenter, another treating physician, opined

that Meadows suffered from chronic fatigue syndrome, chronic

allergic rhinitis, and fibromyalgia.    He opined that Meadows'

medical problems "may continue indefinitely," that her ability to

be a clinical nutritionist was "severely impaired," and that her

deficits were likely to be permanent.
     At Dr. Carpenter's referral, Dr. Daniel Clauw, a

rheumatologist, examined Meadows and reported as follows:
               I currently care for Charlotte Meadows.
           She suffers from both fibromyalgia and
          chronic fatigue syndrome. These are
          debilitating illnesses characterized by
          severe fatigue and diffuse musculoskeletal
          pain, as well as a number of symptoms such as
          cognitive dysfunction. I feel that Ms.
          Meadows is permanently disabled by these
          conditions. It is not uncommon for either of
          these conditions to lead to disability, and
          although there are no objective abnormalities
          on x-rays or significant abnormalities on
          laboratory tests, these entities can
          frequently be much more disabling than
          conditions where there is evidence of these
          types of objective abnormalities.


     In addressing Meadows' claim, and in particular the finding

by Dr. Clauw, the medical board noted the following:
          Dr. Daniel Clauw, Assistant Professor,
          Division of Rheumatology, has accepted her
          complaints at face value and feels she is
          disabled on the basis of chronic fatigue
          syndrome and fibromyalgia. The Board has not
          felt that these complaints justify the



                               - 6 -
          conclusion of permanent disability and the
          present information submitted does not alter
          that viewpoint. It is noted that the
          information submitted by Dr. Clauw is that
          the applicant has a multitude of somatic
          complaints of which fatigue and
          musculoskeletal complaints are only a part.
          She has suffered from irritable bowel
          syndrome, daily headaches, she has been said
          to have "sacroiliitis" though this has not
          been documented radiographically. She has
          been on antidepressants.
               On evaluation, the applicant was
          described as being alert, oriented and "in
          minimal distress." The physical examination
          revealed absolutely no abnormality. The
          presence of "trigger points" is noted in
          upper and lower extremities but this finding
          is virtually meaningless and is found in many
          anxious individuals.
               In summary, we have an applicant who,
          with multiple somatic complaints, complains
          predominately now of musculoskeletal aches
          and pains, termed "fibromyalgia" and fatigue
          which is now expressed as "chronic fatigue
          syndrome." Neither of these is dignified by
          objective abnormalities confirmable by an
          independent examiner and the applicant is not
          separated in any objective way from the mass
          of the public of the same age in such a
          manner as would lead to a conclusion that she
          is incapacitated for work.


     The evidence also proved that the retirement system's

medical board referred Meadows to Dr. Ray Cendana, a

psychiatrist, for another psychiatric evaluation.   In pertinent

part, Dr. Cendana reported the following:
          It appears the symptoms about which she is
          complaining could be related to her chronic
          fatigue syndrome; however, there are no
          indications that would warrant her follow-up
          here in the psychiatric clinic. Also there
          are no indications for psychotropic
          medications at this time. From the interview
          conducted here in this office today, there is
          no evidence of cognitive impairment, although
          her history states otherwise.



                              - 7 -
                  We feel there is no primary psychiatric
             diagnosis. Hence, there is no psychiatric
             diagnosis which permanently disables her.


     Based upon this evidence, the hearing officer concluded that

Meadows did not qualify for disability retirement benefits

because the evidence did not prove that she was incapacitated

from doing her job.    The retirement system director accepted the

findings and issued a decision concluding that Meadows had not

proven that her incapacity was "likely to be permanent" as

required by Code § 51.1-165(E)(ii).
     Upon our review of the entire agency record, we conclude

that the trial judge did not err in finding that the decision was

supported by substantial evidence.       Indeed, we cannot conclude

that in "'considering the record as a whole, a reasonable mind

would necessarily come to a different conclusion'" than that

reached by the agency.     Virginia Real Estate Comm'n v. Bias, 226

Va. 264, 269, 308 S.E.2d 123, 125 (1983) (citation omitted).

     The evidence clearly supports the hearing officer's findings

that although Meadows' position as a nutritionist requires some

physical stamina, it does not require the degree of effort that

supports Meadows' claim that she is permanently incapacitated

from her work.    Meadows reports a multitude of complaints most of

which relate to her claims of chronic fatigue and are subjective

in nature.    Indeed, a functional capacity evaluation report

"revealed that [Meadows] was able to briefly perform all

activities related to her job, her only limiting factor was her



                                 - 8 -
subjective complaints of pain."   The evaluator found that

although Meadows had "positive postural asymmetries with

associated muscle guarding and tightness," these findings are

"common in the general population and it is therefore difficult

to explain why Ms. Meadows is unable to tolerate sedentary and

light activities for periods of time required of her job."

Meadows' evidence generally tended to establish somatic,

subjective complaints of pain; however, as the medical board

reported, none of Meadows' complaints are "objective

abnormalities confirmable by an independent examiner."    Even Dr.

Clauw noted "there are no objective abnormalities on x-rays or

significant abnormalities on laboratory tests" to support

Meadows' subjective complaints of pain.   Furthermore, the

psychiatric reports indicate that while she may have an

adjustment disorder and other difficulties, none of these

permanently disables her.
     Simply put, the record before the retirement system contains

"substantial evidence . . . upon which the agency as the trier of

the facts could reasonably find them to be as it did."    Code

§ 9-6.14:17.   Accordingly, we hold that the record contains

evidence that is substantial and adequate to support the agency's

decision, and we affirm the judgment.

                                                          Affirmed.




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