COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
BARBARA W. JOHNSON
OPINION BY
v. Record No. 1772-98-2 JUDGE JAMES W. BENTON, JR.
JUNE 29, 1999
VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF LANCASTER COUNTY
Joseph E. Spruill, Jr., Judge
Sean P. Kavanagh (Jenkins, Block &
Associates, P.C., on briefs), for appellant.
Brian J. Goodman, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The Virginia Retirement System denied Barbara W. Johnson's
application for disability benefits. On this appeal from the
circuit court's review, Johnson contends the trial judge erred in
ruling that the record contains substantial evidence to support
the Retirement System's decision. See Code § 9-6.14:17. For the
reasons that follow, we affirm the judgment.
I.
For nineteen years, Barbara W. Johnson was employed as an
elementary school teacher by the Lancaster County School Board.
She resigned from her position in July 1996 and applied to the
Retirement System for regular disability retirement benefits. See
Code § 51.1-156. Johnson's application indicated she suffered
from hypertension and related medical problems that became
aggravated when she was in the classroom. Attached to her
application was a report from Dr. Norman R. Tingle, Jr., her
physician, which indicated the following:
[Johnson] remains relatively anxious and
hypertensive, but is doing pretty well on
her medications. . . . She plans not to go
back to work. I recommend that. I think it
is too stressful. Her blood pressure is
clearly made worse by the stress at work.
In that regard, she is applying for early
disability and I have completed a note today
suggesting that she go ahead and early
retire.
Denying the application, the Retirement System informed
Johnson that the medical board had reviewed the application and
recommended denying it. See Code § 51.1-124.23. The medical
board noted, "[t]here is no evidence of end-organ impairment
from her hypertension . . . and generally in such cases, more
focused treatment of the blood pressure gives control." Johnson
appealed the decision and submitted additional evidence,
including a chart of her blood pressure readings for eighteen
months and a letter from Dr. Tingle. In his letter, Dr. Tingle
disclosed the medication Johnson was taking and stated, "her
blood pressure is stable now, but she is not working and I
recommended that she not do that." The medical board requested
that Johnson submit to an independent medical examination by Dr.
Kenneth C. Griffith, a cardiovascular specialist, and sent Dr.
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Griffith a copy of the records it had received from Johnson and
Dr. Tingle.
After examining Johnson, Dr. Griffith reported to the
medical board that Johnson has "poorly controlled" blood
pressure and "has been treated with several different agents but
apparently has been treated one at a time and never in
combination." While noting that the "documentation as to the
medical regimen which [Johnson] has been under is somewhat
limited," Dr. Griffith's report contained references to
Johnson's current medication, "Johnson's own account" of her
medicines, and Dr. Tingle's letter noting the types of
medication he had prescribed. In concluding his lengthy report,
Dr. Griffith stated the following disposition:
I am not quite certain why this lady takes
Codeine twice a day and I am not quite
certain if she has any reason for suspecting
that her symptomatology is related to her
hypertension. She seems to have a lot of
symptoms that are much more likely to be
anxiety symptoms than hypertensive. She has
uncontrolled hypertension but I do not think
it has been at all demonstrated that she has
ever been on a regimen of medications which
might reasonably be suspected to control
difficult hypertension. It may well be that
she has a disabling anxiety condition, it
may be that she potentially has disabling
hypertension if it were demonstrated that
the patient's current level of pressure was
the best that could be attained by
multi-drug therapy, but as of the present
moment I do not see that in my professional
opinion that disabling hypertension has been
demonstrated.
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On December 2, 1996, the Retirement System again denied
Johnson's application. It informed Johnson that, after
reviewing Dr. Griffith's report, the medical board recommended
denying the application because Johnson had not proved a
"permanently disabling illness." Johnson then submitted
further, more current medical reports from Dr. Tingle, who noted
Johnson's continuing elevated blood pressure, described the
medication she was receiving, and reported that she had been
examined by Dr. Anthony Giordano because of hearing problems she
was experiencing. On December 18, 1996, the Retirement System
denied Johnson's further application. Although Johnson's
"single antihypertensive medication has been increased," the
medical board found, "[t]here is still no evidence with the use
of approved methods of treating blood pressure, including
multiple drugs, that her blood pressure cannot be quite
satisfactorily controlled" and "[t]here is still no evidence of
permanent disability from hypertension."
Johnson requested a fact finding hearing, see Code
§ 9-6:14.12, and informed the Retirement System that she had "a
new doctor." Johnson also supplied additional records from Dr.
Tingle, Dr. Giordano, Dr. John Deschamps, an internist, and Dr.
William G. Ryan, an optometrist. At the hearing, Johnson
testified extensively concerning her difficulties at school and
at home. The notes from Dr. Tingle reported that on January 21,
1997, he increased Johnson's medication for hypertension and
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that her blood pressure had decreased when she returned two
weeks later. Dr. Deschamps reported that on his examination of
March 24, 1997, Johnson said she had experienced blood pressure
problems "for at least seven years," and he noted the various
medicines she had taken. He diagnosed hypertension and "anxiety
with some stress component," and he "streamline[d]" Johnson's
medications. When Johnson returned to Dr. Deschamps two weeks
later, he noted that her blood pressure "is much better
controlled." However, Dr. Deschamps' medical report stated that
Johnson's "feeling is that she can no longer effectively teach
her classes" and that he "do[es] not foresee her being able to
continue her work as a teacher because of the responsibility
that that requires."
In its review of the doctors' reports, the medical board
noted that "Dr. Deschamps indicate[s] that [Johnson's] pressure
was eventually satisfactorily controlled with the recording
130/80," that Dr. Ryan reports Johnson's "vision is corrected at
20/20 in each eye with lenses," and that Dr. Giordano reports
Johnson needs no further treatment for her hearing problem. The
medical board concluded that Johnson's "hypertension is now
satisfactorily controlled" and that "[t]here is no evidence of a
permanently disabling condition."
Based on his review of Johnson's testimony and the medical
evidence, the hearing officer found that Johnson did not fully
satisfy the statutory requirements of Code § 51.1-156. Noting
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the report from Dr. Deschamps, which established that under his
medication regimen Johnson's blood pressure is now "better
controlled," the hearing officer found that Johnson had not
established a permanent disabling condition. The hearing
officer further stated the following:
While Ms. Johnson may not be ready to resume
the responsibility of a teacher at this time
and has shown as much, she has not satisfied
the requirement of the code that her
condition is likely to be permanent.
Hypertension is permanent, but it may be
controlled.
Upon review of the hearing officer's decision, the Retirement
System informed Johnson that "[t]he medical evidence has not
proved that your incapacity is 'likely to be permanent'" and
denied her application for disability benefits.
On appeal to the circuit court, Johnson contended that the
"findings of fact . . . are not based upon substantial evidence"
and that she had sufficiently demonstrated permanent physical
incapacity from work. Finding that the "record contains
conflicting medical testimony from reputable physicians," the
trial judge ruled he "cannot conclude . . . it would be
necessarily unreasonable to accept the opinion of one to the
exclusion of the others." Basing his decision upon the
"substantial evidence" standard, the trial judge affirmed the
agency's decision. This appeal followed.
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II.
The standard of review applicable to this appeal is
governed by the Administrative Process Act. See Code
§ 9-6.14:17. Applying the Act, we have ruled as follows:
In reviewing an agency decision, "[t]he
scope of court review of a litigated issue
under the APA is limited to determination
[of] whether there was substantial evidence
in the agency record to support the
decision." The substantial evidence
standard is "designed to give great
stability and finality to the fact-findings
of an administrative agency." A trial court
may reject the findings of fact "only if,
considering the record as a whole, a
reasonable mind would necessarily come to a
different conclusion." The burden of proof
rests upon the party challenging the agency
determination to show that there was not
substantial evidence in the record to
support it.
Smith v. Dept. of Mines, Minerals & Energy, 28 Va. App. 677,
684-85, 508 S.E.2d 342, 346 (1998) (citations omitted). See
also Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308
S.E.2d 123, 125 (1983). Although "[s]ubstantial evidence is
more than a mere scintilla," Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938) (cited in Bias, 226 Va. at 269, 308
S.E.2d at 125), we have held, nonetheless, that this standard of
review requires courts to give great deference to the agency's
factual findings.
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,
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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, 263, 369 S.E.2d
1, 18-19 (1988) (citations omitted).
Based on the medical evidence in this record, a "reasonable
mind" certainly could find that the evidence did not prove
Johnson's condition was likely to be permanent. The record
contains a report from Dr. Griffith noting that Johnson had been
given an insufficient medical regimen for controlling
hypertension. Indeed, when Johnson began treatments with Dr.
Deschamps, he adjusted her medication and reported "her [blood
pressure] is much better controlled at 130/80."
By statute, the medical board is empowered to review
reports of medical examinations, to investigate health and
medical statements submitted in connection with disability
applications, and to report its conclusions and recommendations
to VRS. See Code § 51.1-124.23(B). The medical board examined
all of the medical reports, see Code § 51.1-156(E), including
the reports of Drs. Tingle, Deschamps, and Griffith, and found
persuasive the opinion of Dr. Griffith. The hearing officer
received the medical board's recommendations and likewise found
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unpersuasive medical reports of Johnson's permanent incapacity.
The Retirement System upheld that finding.
The trial judge noted that "[t]his record contains
conflicting medical testimony from reputable physicians" and
ruled that he "cannot conclude that it would be necessarily
unreasonable to accept the opinion of one to the exclusion of
the others." In other agency cases, we have ruled that "'[a]
question raised by conflicting medical opinion is a question of
fact.'" WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d
147, 152 (1997) (citation omitted). We have also observed 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.'" Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421
S.E.2d 872, 874 (1992) (citation omitted). Those principles are
applicable in the context of this case. Accordingly, we affirm
the trial judge's ruling.
III.
Relying on the "treating physician rule" in federal
disability cases, see e.g., Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987) and 20 C.F.R. § 404.1527(d)(2), Johnson
additionally argues that the Retirement System should be
required to give greater weight to Dr. Tingle's report.
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We find no basis in Code § 9-6.14.17 to require the
Retirement System to adopt such a rule. By statute, the
Retirement System is required to "employ a Medical Board of four
physicians[,] who [serve four-year terms and] are not eligible
to participate in the Retirement System," to review the medical
reports and make recommendations to the Retirement System. Code
§ 51.1-124.23. Thus, the legislature has designated in the
basic law a neutral evaluatory mechanism for the Retirement
System to gather and analyze medical opinions and reports.
Furthermore, we note that even if such a rule were in
place, the result in this case would be no different. The
Supreme Court applies the following rule in Workers'
Compensation cases where there is conflicting medical evidence:
The general rule is that when an attending
physician is positive in his diagnosis of a
disease, great weight will be given by the
courts to his opinion. However, when it
appears . . . that the diagnosis is shaded
by doubt, and there is medical expert
opinion contrary to the opinion of the
attending physician, then the trier of the
fact is left free to adopt that view which
is most consistent with reason and justice.
Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468, 471,
162 S.E. 8, 9 (1932).
The record in this case contains conflicting medical
opinions on the issue of whether Johnson "has ever been on a
regimen of medications which might reasonably . . . control
difficult hypertension." The hearing officer found Dr.
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Griffith's opinion to be more credible. Furthermore, the most
recent reports from Johnson's physicians demonstrate that her
blood pressure was being controlled. Relying upon the
recommendations of the medical board and the hearing officer,
the Retirement System found that Johnson had failed to establish
that her incapacity is "likely to be permanent," Code
§ 51.1-156(E), and denied Johnson's claim. Substantial evidence
in the record supports that finding. Accordingly, we affirm the
judgment.
Affirmed.
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