Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-47332
McGuiness, P.J.
California Department of Mental Health (DMH) appeals from a judgment in an administrative mandamus proceeding in which the trial court denied DMH’s petition challenging a decision of the California State Personnel Board (SPB) that revoked the medical demotion of employee Lorene “Lucky” Meyer. DMH contends: (1) the Administrative Law Judge (ALJ) improperly relied on medical information that was not available at the time of the demotion decision; (2) the ALJ improperly considered evidence of Meyer’s mental fitness that developed after the demotion decision; and (3) there was no substantial evidence supporting the ALJ’s finding. We reject the contentions and affirm the judgment.
Factual and Procedural Background
Meyer began working at Napa State Hospital as a psychiatric technician (forensic) in July 1999 and as a psychiatric technician (safety) in August 2000. According to the classification for the position of psychiatric technician (safety), her job duties included escorting clients, patients or inmates in the facility and in the community, searching for drugs, contraband and weapons, performing nursing procedures such as administering oral medications and injections, and “observing and intervening in forensic client, patient, or inmate behavior that may injury people, damage property, or signal impending escape attempts.” Psychiatric technicians (safety) were also required to “work under general supervision and, in addition to their custody responsibilities, provide a basic level of general behavioral and psychiatric nursing care and [we]re expected through their attitude, knowledge, and performance to facilitate the rehabilitation of [clients].”
In January 2003, the nursing coordinator for Napa State Hospital’s Program One, to which Meyer was assigned, filed a formal request to have Meyer undergo a fitness for duty evaluation on the ground that Meyer “ ‘repeatedly violates [the] same rules despite frequent direction’ and ‘seems to have difficulty concentrating, following directions and getting along with both clients and staff.’ ” A fitness for duty committee “reviewed a number of concerns that had been raised, ” including “ ‘several reports and investigations involving inappropriate behavior (over familiarity) with patients, ’ reports that [she] put others’ safety at risk because, ‘while staff are physically interacting with assaultive patients, [Meyer] becomes very defensive of certain patients, ’ [and] ‘numerous incidents of insubordination....’ ” The committee concluded “this ‘lengthy pattern was one of an employee who appeared to have a psychiatric disorder that impaired her ability to safely carry out her duties.’ ”
In a report dated April 10, 2003, Charles B. Schaffer, M.D., (Dr. Schaffer) stated he had performed a fitness for duty evaluation of Meyer as requested by the medical director of Napa State Hospital. The evaluation consisted of a clinical interview of Meyer, a review of the results of a psychological test (the MMPI-II), a review of personnel records from Napa State Hospital and the duty statement for the position of psychiatric technician, and “[c]ontact with” three Napa State Hospital employees. Dr. Schaffer concluded Meyer was “substantially incapacitated to perform the duties of a Psychiatric Technician or any other position in Napa State Hospital as a result of a psychiatric disorder.” On April 21, 2003, based on Dr. Schaffer’s report, DMH applied for a disability retirement on Meyer’s behalf.
In a report dated November 18, 2003, Lawrence T. Petrakis, M.D., (Dr. Petrakis) stated he examined Meyer, reviewed the job duty statement for a psychiatric technician, various reports including Dr. Schaffer’s report, and a September 23, 2003, certification from Kaiser Permanente stating Meyer could return to full duty with no restrictions. Having noted that Dr. Schaffer “apparently was in possession of information that [he did] not have available at th[e] time” of his examination of Meyer, Dr. Petrakis concluded, “There was nothing on clinical examination that would lead [him] to the same conclusions as [Dr. Schaffer] ha[d] provided.” Dr. Petrakis concluded Meyer was “not disabled for her job as a psychiatric technician at th[at] time” and that there were “no specific job duties [he felt Meyer was] unable to perform because of her mental state.”
On January 28, 2004, California Public Employees Retirement System (PERS) denied DMH’s application for a disability retirement for Meyer based on a finding that Meyer was not substantially incapacitated from performing her job duties as a psychiatric technician. DMH appealed the decision on February 27, 2004, and requested a hearing. A hearing took place on August 9 and 10, 2004, and an ALJ found the evidence did not establish Meyer was physically or mentally incapacitated from performing the duties of a psychiatric technician (safety). The ALJ stated there were various criteria for making a personality disorder diagnosis, including criteria that “the individual’s ‘enduring pattern’ of deviant behavior ‘[be] inflexible and pervasive across a broad range of personal and social situations, ’ and that the “the individual’s pattern of behavior be ‘stable and of long duration’ with an onset that ‘can be traced back at least to adolescence or early adulthood.’ ” Noting that Dr. Schaffer “obtained no evidence... to show that Meyer’s functioning outside the work setting was dysfunctional” and obtained no information predating a 1996 investigation at another hospital (when Meyer was 40 years old, i.e., no longer in “adolescence or early adulthood”), the ALJ found Dr. Schaffer had “insufficient evidence upon which to base a diagnosis of Personality Disorder Not Otherwise Specified.”
At some point prior to December 12, 2005, DMH ordered Meyer to undergo another fitness for duty evaluation. In a report dated December 12, 2005, Benjamin Kaufman, M.D. (Dr. Kaufman) stated he had conducted a fitness for duty of evaluation of Meyer as requested by the assistant medical director of Napa State Hospital. He reviewed 26 documents the assistant medical director provided to him, including Meyer’s job specification, correctional counseling memoranda, instructional memoranda, investigative reports and performance reports. He noted that two “well-qualified experts, ” Dr. Schaffer and Dr. Petrakis, had reached different conclusions. He interviewed Meyer and several Napa State Hospital employees and administered a Personality Assessment Inventory (PAI) test that “disclosed no presence of clinical psychopathology.” The employees informed him of instances in which Meyer was uncooperative, angry, argumentative and insubordinate.
Dr. Kaufman found no diagnosis on Axis I but diagnosed Meyer with “personality disorder not otherwise specified” on Axis II. He concluded Meyer met the “research criteria for Negativistic Personality Disorder and Passive Aggressive Personality Disorder manifested by pervasive oppositional pattern of behavior to demands for improved performance in the workplace; resistance to legitimate authority; opposition to demands for improved performance;... no realization her behavior is responsible for her difficulties;... believes she is doing a much better job than she actually is.” He concluded Meyer was “not capable of functioning as a team member in a therapeutic setting for disturbed patients” and “recommend[ed] that she not be returned to duty... due to [her] Personality Disorder....”
Dr. Kaufman testified that “Axis I refers to more acute kinds of situations like an acute psychotic process of acute depressive reaction, something more short term and really obvious, ” whereas “Axis II diagnos[e]s... are more enduring kinds of diagnoses.”
In a report dated April 30, 2007, Dr. Kaufman stated he “performed a psychiatric re-evaluation through interview and psychometric testing of [Meyer] on March 20, 2007, for a Fitness for Duty as a psychiatric technician.” He noted that Meyer had been appointed to and rejected during a probationary period from an office technician (general) position and was “exercising mandatory reinstatements rights to her prior position as a psychiatric technician.” He reviewed several documents, including duty statements for the job classifications of office technician (general) and psychiatric technician (safety), a notice of rejection during probationary period, and probationary reports. He interviewed Meyer and spoke to Victor Garcia, “a supervisor of... Meyer in one of her out of [p]sychiatric [t]echnician[] positions, ” who “stated this out-of-career-line placement was disaffiliating and disjointed, and sympathized that... Meyer was right to complain that she is not someone who is prepared to ‘clean floors and clean bathrooms.’ ” Garcia described Meyer as a “pleasant, respectful person.” He said he had very little work for her to do and that Meyer “lost interest in her position rather quickly.” Dr. Kaufman interviewed another employee who said that Meyer was polite and respectful and “fit with the office dynamics [but] was definitely not an office assistant type person” because she was not able to learn the skills necessary to perform the job despite extensive training.
It appears Garcia was referring to the position of custodian to which Meyer was demoted.
Dr. Kaufman diagnosed Meyer on Axis I with “Major Affective Disorder [not otherwise specified], manifested by flattened affect, slowed disinterested thought processes, concentration deficit, energy deficit, ” and on Axis II with personality disorder, not otherwise specified. He indicated she also met the diagnostic criteria for negativistic personality disorder and passive aggressive personality. He stated she was “totally at odds with those in hospital workplace authority, ” was unwilling to accept supervision, was “aloof from criticism, ” was “quite depressed and withdrawn.” He stated her personality disorder caused her to “overvalue[] her own judgment, ” which could be “dangerous to the welfare of patients in a health care setting” and could “lead to her endangering herself and others.” He concluded she was “clearly unfit to perform the duties of a psychiatric technician.”
In a report dated June 4, 2007, Dr. Kaufman stated he “performed a psychiatric re-evaluation through interview and psychometric testing of... Meyer on Tuesday, March 20, 2007, for a Fitness for Duty as a psychiatric technician.” This report contained much of the same information contained in his April 30, 2007, report and reached the same conclusion that Meyer was “clearly unfit to perform the duties of a [p]sychiatric [t]echnician.”
On October 2, 2007, DMH informed Meyer by a “Notice of Medical Demotion” that she was being demoted from psychiatric technician (safety) to custodian effective October 23, 2007, based on “medical information resulting from the fitness for duty [evaluation] performed by Benjamin Kaufman, dated June 4, 2007.” Meyer appealed the decision to the SPB and a hearing was held before an ALJ on May 22, 2008.
At the May 22, 2008, hearing, Dr. Kaufman testified he has been a licensed medical doctor since June 1963. He had observed the interaction of psychiatric technicians in patient care over many years and believed it was essential that they be able to work as part of a team, accept direction from supervisors, adhere to hospital rules and regulations, and act quickly in emergency situations. He testified that in preparing his three reports, he contacted collateral sources because the type of diagnosis he made “require[s] collateral information either from family members, coworkers, etcetera.” He testified that although he spoke to some collateral sources, he generally did not independently verify whether the matters discussed in the documents he reviewed were factually true. He also did not speak with family members or friends to obtain information about how Meyer interacted with her family and friends and did not investigate whether the problems he believed Meyer had were in existence since early childhood or adolescence. He testified it is “very helpful” to have information regarding early childhood and adolescence but that personality disorders often manifest themselves later, as responsibilities in life increase. He testified that in order to confirm his diagnosis, he would also want to know how the person acts outside of the work environment, but did not look into this “to any great extent” when he diagnosed Meyer.
Mark Kimmel, Ph.D. (Dr. Kimmel) testified he has been a licensed psychologist since 1982. He testified he reviewed Dr. Kaufman’s three reports and found there were inconsistencies between the psychological testing-the PAI and the MMPI-II-and Dr. Kaufman’s conclusions, as well as inconsistencies in some of the statements he made in the reports. He testified the PAI is an objective personality test that is fairly new but has become popular and that the MMPI-II, which is considered to be the “gold standard” for personality tests, has had “so much research done on it in every conceivable way” that it is “used quite a bit in all sorts of forensic settings and clinical settings.” He stated Meyer’s PAI results revealed “no elevations that should be considered to indicate the presence of clinical psychopathology, ” which meant her profile was “entirely within normal limits.” He testified that her scores on the MMPI-II were “all in the average range, so [there was] no clinical elevation... which would suggest psychopathology either.” He also noted that Dr. Kaufman’s consultant who reviewed the PAI “added his own text... stating” that “adjustment disorder with disturbance of conduct” and “personality disorders not otherwise specified” should be ruled out. Dr. Kimmel testified that the Axis V global assessment of functioning (GAF) score of 70 given to Meyers by Dr. Kaufman was a “score indicating no impairment.”
Dr. Kimmel testified he interviewed Meyer for approximately three hours and conducted his own testing on May 19, 2008, by administering the Shipley Institute of Living Scale Revised, which measures intellectual functioning, the Halsted-Reitan Battery A and B, which measure “psychomotor speed” and “attention and concentration, ” the PAI, and other tests known as the Beck Depressions Inventory II, the Wahler Physical Symptoms Inventory, the Beck Anxiety Inventory, the Brief Symptom Inventory, and the Proverbs test. He did not contact any collateral sources regarding Meyer’s work, family or social situation. He testified there was nothing in the testing that suggested a personality disorder. After reviewing the duty statement for psychiatric technicians, interviewing Meyer, and administering the various tests, Dr. Kimmel did not see anything prohibiting her from performing her duties as a psychiatric technician due to a psychological dysfunction.
Dr. Kimmel further testified that a personality disorder is a longstanding pattern of dysfunction that can typically be traced back to adolescence or early adulthood, but that Dr. Kaufman concluded “totally on [Meyer’s] current level of functioning” that she had a personality disorder. He testified that in diagnosing an individual, it would also be “very important” to inquire beyond the workplace to find out how the individual functions outside the workplace. He noted that Dr. Kaufman did not interview collateral sources outside the workplace and that the section in which Meyer’s history was discussed was “silent in regard to earlier adjustment problems.” He also observed that the only thing Dr. Kaufman reported to support his conclusion was Meyer’s “problematic behavior and performance from the point of view of coworkers and supervisors.” He noted that Dr. Kaufman stated that a program director at Napa State Hospital “did point out that many of the complaints are unsubstantiated because the patients are criminals and complaints are often difficult to substantiate, and that patients regularly set up staff members for complaints.” Dr. Kimmel testified that was the kind of “admission” that he would take into consideration, i.e., “recognizing that this is a... political environment, there are lots of conflicts that occur between patients and staff, and between staff members, and if those are not managed well, people can get scapegoated. And that would be an alternative hypothesis here.” He stated he had worked “for a long period of time” at a psychiatric acute facility with a population similar to that of Napa State Hospital and had observed there were issues there, including “politics, ” “cliques, ” “a hierarchy” and “racial issues.” Dr. Kimmel testified he believed Dr. Kaufman’s diagnosis of major affective disorder was inconsistent with the results of the psychological testing as well as Dr. Kaufman’s own observations that Meyer “presented with a friendly attitude, ” that her “ ‘thought processes flowed sequentially. She was coherent.... Her cognitive state was unchanged from the prior evaluation and she appeared oriented in all spheres, ’ meaning her cognitive functioning seem[ed] normal.”
Napa State Hospital program director Michael Stolp testified he became a licensed psychiatric technician in September 1979 and worked as a psychiatric technician, a senior psychiatric technician, and unit supervisor before becoming a program director. His duties as a program director included the overall supervision of psychiatric technicians. He testified there were “a variety of patients” in “Program One, ” which he supervised. They were mostly forensic patients, i.e., mentally ill criminals who had committed crimes including “everything from rape and murder to... stealing.” Others were civilly committed individuals who were under conservatorship. He testified the forensic patients often lacked self control and many had personality disorders. It was essential for psychiatric technicians to work well with a team because many of the forensic patients would “try to split staff by getting one staff to agree with them against what the team” believed, or would try to engage in relationships with staff or try to “set up staff.” Communication and the ability to accept supervision was also critical, especially in emergency situations such as “take-downs” in which patients would have to be contained in order to protect the staff and patients. Stolp testified that there was a “mechanism within the civil service system” by which he could take disciplinary action against employees who did not follow rules or had difficulty working with others, including ultimately terminating their employment. He testified that not all employees who failed to follow rules or were unable to work as team members were instructed to undergo fitness for duty evaluations, and not all of them had mental disorders.
In a 12-page Statement of the Case, the ALJ revoked the medical demotion, finding DMH “did not establish by a preponderance of the evidence that [Meyer] had, at the time of her medical demotion to Custodian, a psychiatric medical condition that rendered her unable to safely and efficiently perform the duties of Psychiatric Technician (Safety).” The ALJ discredited Dr. Kaufman’s diagnosis, stating: “Several co-workers found [Meyer] to be a very difficult employee and resistant to instruction. However, Dr. Kaufman’s testimony did not persuasively establish that [Meyer] exhibited abnormal behavior outside of the workplace, that her pattern of behavior led to clinically significant distress, or that the pattern was stable and of long duration. Dr. Kaufman’s diagnosis is not supported by the psychometric tests or the experience of [Meyer’s] co-workers while she was an Office Technician. Moreover, his conclusion that [Meyer] was unable to respond to supervisors’ disciplinary measures is weakened by the fact that [Meyer] never actually received a formal adverse action.” The SPB adopted the ALJ’s decision on October 3, 2008.
The DMH filed a petition for a writ of mandate to set aside the SPB’s decision, which the trial court denied on November 16, 2009. The trial court stated: “[B]ased upon the evidence presented, the ALJ found that [DMH] had not established by a preponderance of the evidence that Meyer suffered from a mental condition that rendered her unable to safely and efficiently perform the duties of a psychiatric technician. Given Dr. Kimmel’s testimony, who cogently called into question the validity of Dr. Kaufman’s conclusions at the time those conclusions were reached, this court finds that the ALJ’s decision was supported by substantial evidence in the record. Accordingly, [DMH’s] Petition for Writ of Mandate is DENIED.”
Discussion
1. “Later acquired evidence”
Government Code section 19253.5, which governs demotion, transfer or termination of state civil service employees for medical incapacity, provides in relevant part: “In accordance with Board rule, the appointing power may require an employee to submit to a medical examination by a physician or physicians designated by the appointing power to evaluate the capacity of the employee to perform the work of his or her position.” (§ 19253.5, subd. (a).) “When the appointing power, after considering the conclusions of the medical examination and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, but is able to perform the work of another position including one of less than full time, the appointing power may demote or transfer the employee to such a position.” (Id., subd. (c).)
All further statutory references are to the Government Code.
An employee who has been demoted for medical reasons has the right to appeal the demotion decision to the SPB. (§ 19253.5, subd. (f).) “ ‘In reviewing a decision of [SPB] on a petition for administrative mandamus, we stand in the same shoes as the trial court, applying the substantial evidence rule.’ [Citation.] ‘We do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of [SPB’s] decision.’ [Citation.] [¶] Insofar as the appeal from the administrative mandamus proceeding presents questions of law, our review is de novo. [Citation.]” (California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601, 1611; see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 813, fn. 5.) We take ultimate responsibility for the construction of statutes while according great weight and respect to the administrative construction, as is appropriate under the circumstances. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7, 11-13; see also Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 111 [“because of the [Board’s] expertise, its view of a statute or regulation it enforces is entitled to great weight unless clearly erroneous or unauthorized”].)
DMH contends the ALJ improperly relied on medical information that had not been available at the time of its demotion decision, e.g., Dr. Kimmel’s testimony and reports, which called into question the information on which DMH relied in demoting Meyer. DMH complains it could not have known whether Dr. Kaufman’s reports were deficient at the time of the demotion decision because Dr. Kimmel’s reports were not available then, and that by allowing an employee to challenge a demotion decision based on later acquired information “unnecessarily penalizes the DMH for making a difficult medical decision” and subjects “any medical demotion decision... to endless second-guessing.” In essence, DMH’s argument is that section 19253.5, subdivision (c), authorizes it to demote an employee, regardless of the employee’s actual medical condition, as long as it has a reasonable or good faith belief, based on the information available to it at the time of the demotion decision, that the employee is not capable of working in his or her position.
DMH has not cited, and we have not found, any authority supporting DMH’s statutory construction. In fact, in another case involving section 19253.5, subdivision (d), a comparable statute relating to termination decisions, a Court of Appeal held “[t]he department... has the burden of proving” the employee is “ ‘unable to perform the work of his or her present position, or any other position in the agency, ...’ ” (§ 19253.5, subd. (d); Overton v. State Personnel Bd. (1975) 46 Cal.App.3d 721, 725 (Overton), italics added, citing Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 547 [“The burden of proving these charges rests upon the appointing power, the one making the charges”].) Similarly, the Court of Appeal in Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41, 50 (Newman) held, “The relevant inquiry is whether the medical reports and other pertinent information available at the time [of the termination decision] establish such incapacity.” (Italics added.) The cases show that the medical reports and other pertinent information available at the time of the demotion or termination decision must “prove” or “establish” the employee’s incapacity.
Section 19253.5, subdivision (d), provides: “When the appointing power after considering the conclusions of the medical examination provided for by this section or medical reports from the employee’s physician, and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, or any other position in the agency, and the employee is not eligible or waives the right to retire for disability and elects to withdraw his or her retirement contributions or to permit his or her contributions to remain in the retirement fund with rights to service retirement, the appointing power may terminate the appointment of the employee.”
Further, although we are not bound by SPB’s precedential decisions, (see California Dept. of Corrections v. State Personnel Bd., supra, 121 Cal.App.4th at p. 1611), we note and adopt the reasoning set forth in In re Lorenzo G. Galvan (1997) SPB Decision No. 97-04 (Galvan). In Galvan, an employee appealed his demotion decision to SPB and attempted to challenge the medical report on which his demotion was based. (Galvan, supra, at p. 7.) At the hearing on the appeal, the ALJ stated that “her function at a medical demotion hearing was not to place herself in the role of the medical examiner, but merely to determine whether the Department reasonably relied on the medical report.” (Id. at p. 6.) The ALJ therefore did not allow the employee to cross-examine the doctor, call his own expert to challenge the doctor’s findings, or testify that the information upon which the doctor relied was incorrect and should be rejected. (Ibid.)
In ruling upon an employee’s review of an adverse action, SPB designates and publishes some of its decisions as “precedent” where the decision contains a “significant legal or policy determination of general application” upon which SPB may rely in future cases. (§§ 19582.5, 11425.60.)
Both parties discuss Galvan at length, and the ALJ and the trial court relied on it in reaching its decisions.
SPB concluded in Galvan that the ALJ deprived the employee of a fair trial and stated: “As noted in [Newman], the ‘relevant inquiry is whether the medical reports and other pertinent information available at the time establish’ that the [employee] was not capable of performing the duties of his position. This is not to say, however, that psychiatric medical reports must be taken at face value.... [¶]... [SPB] cannot cede its powers to evaluate the pronouncements of medical experts appearing at [SPB] hearings. In order to determine whether a medical report establishes that an employee is unfit for duty and a medical demotion is necessary, the ALJ cannot blindly rely on the medical report. The ALJ must evaluate the medical report in light of any other relevant information brought forward at the hearing. The issue is not whether the Department reasonably relied on the medical report but whether the employee was or was not medically fit for duty. For an ALJ to make this determination, the opponent of the medical report must be allowed to test the medical expert’s opinion. In other words, the ALJ must treat the testimony of a medical expert offering an opinion in a section 19253.5 hearing the same as the ALJ would treat the testimony of any other expert.” (Galvan, supra, at pp. 7-8.)
Of course, at the time DMH made its decision to demote Meyer, Dr. Kimmel’s reports did not exist, and DMH was not in possession of the information that was revealed during Meyer’s cross-examination of Dr. Kaufman. Nevertheless, the ALJ’s role at the hearing on Meyer’s appeal was to determine whether DMH had met its burden of “proving” that the medical reports and other pertinent information available at the time of the demotion decision “establish[ed]” Meyer’s incapacity. (See Overton, supra, 46 Cal.App.3d at p. 725; Newman, supra, 10 Cal.App.4th at p. 50.) To prohibit employees from presenting evidence of their capacity to work as of their demotion date but obtained after their demotion decision would render the appeals process meaningless in many cases, as it would deprive employees of the opportunity to challenge demotion decisions that are based on faulty or deficient medical reports. We conclude the ALJ properly allowed Meyer to challenge Dr. Kaufman’s conclusions by cross-examining him and by presenting the testimony and reports of her own expert.
Relying on language from Newman that “[l]ater acquired information would go to the question of reinstatement only, ” (Newman, supra, 10 Cal.App.4th at p. 48), DMH argues that the later acquired information in this case was irrelevant to Meyer’s appeal from a demotion decision, and would have been relevant only in a proceeding for reinstatement. DMH’s reliance on this language from Newman is misplaced.
According to DMH, Meyer is not seeking reinstatement under section 19253.5, subdivision (h).
Section 19253.5, subdivision (h), allows for reinstatement to “an appropriate vacant position... if it is determined by the board that the employee is no longer incapacitated for duty.” (Italics added.) Thus, reinstatement applies to an employee who, at some point, was incapacitated, and later becomes “no longer incapacitated for duty.” Newman involved an employee whose first psychiatrist opined she was not capable of working, and whose second psychiatrist later opined she could return to part time work because she “ ‘was now much more in control of her moods, ’ ” “ ‘calmer and more relaxed and... learning new ways of coping with stress and with problems at the workplace she had in the past;’ ” in other words, because her condition had improved. (Newman, supra, 10 Cal.App.4th at p. 45.) In vacating the SPB’s decision affirming the termination of the employee, the Court of Appeal noted that had the employer terminated the employee before receiving the second psychiatrist’s opinion, the termination decision would have been supported by substantial evidence, and that in such a case, the second psychiatrist’s opinion would have been “[l]ater acquired information [that] would go to the question of reinstatement only.” (Id. at p. 48.)
We do not read Newman to stand for the broad proposition that all later acquired information is relevant only in reinstatement proceedings. In Newman, the second psychiatrist did not challenge the first psychiatrist’s opinion that the employee was incapable of working as of the date of the first psychiatrist’s opinion; rather, he opined the employee’s condition had improved since that date and that she was capable of returning to part time work. (Id. at p. 45.) These facts are distinguishable from those in the present case, in which the “later acquired information” was Dr. Kimmel’s report and testimony challenging Dr. Kaufman’s conclusion that Meyer was not capable of working at the time of her demotion decision. This type of “later acquired information” was relevant and critical to the inquiry of whether Meyer was capable of performing her job duties at the time of her demotion, and the ALJ properly considered it.
2. Evidence of improved condition
DMH contends, without much argument or citation to the record, that the ALJ improperly considered evidence of Meyer’s mental fitness that developed after the demotion decision. It asserts the ALJ considered Dr. Kimmel’s testimony and reports not only “to denigrate Dr. Kaufman’s [conclusions]” but also “to establish that [Meyer] could, in fact, perform her job as a psychiatric technician.” We reject the contention. Although Dr. Kimmel’s evaluation of Meyer necessarily occurred after the demotion decision, the ALJ considered Dr. Kimmel’s testimony and reports in determining whether Meyer was capable of performing her duties as of the date of the demotion decision. In its decision, the ALJ did refer to psychometric testing Dr. Kimmel performed on Meyer but referred to the results only to the extent that they “did not reflect any enduring personality disorder or other psychological abnormality” (italics added) and also took note of the fact that the tests were conducted approximately seven months after the demotion decision. The record does not show the ALJ misunderstood its role or that it improperly considered Dr. Kimmel’s testimony or reports for the purpose of evaluating Meyer’s mental fitness that developed after the demotion decision.
3. Substantial evidence
DMH contends there is no substantial evidence supporting the ALJ’s finding. The evidence showed, however, that Meyer was pleasant during her clinical interviews, that all of the psychological test results were within normal limits and revealed no psychological abnormalities, and that her GAF scores indicated no impairment. Dr. Kaufman acknowledged that “personality disorders are notoriously difficult to diagnose, ” and evidence was presented that his own consultant opined that a diagnosis of “personality disorders not otherwise specified” should be “ruled out” based on the PAI test results. The various counseling memoranda and investigatory reports Dr. Kaufman reviewed were outdated as they related to incidents that had occurred four years before the demotion decision, and, as the ALJ found, Dr. Kaufman’s conclusion that Meyer was not responsive to supervisors’ disciplinary measures was “weakened by the fact that [Meyer] never actually received a formal adverse action.” Although there was evidence that some co-workers believed Meyer was disruptive, argumentative and inappropriate, employees with whom Meyer had more recently (and closer in time to the demotion decision) worked described her as polite, pleasant and respectful. Moreover, Dr. Kaufman acknowledged that information regarding Meyer’s early adulthood and life outside of the workplace would be helpful in accurately diagnosing her, but stated he did not seek such information other than asking her a few questions about her home life and history. Thus, his testimony did not persuasively establish that Meyer exhibited abnormal behavior outside of the workplace, that her pattern of behavior led to clinically significant distress, or that the pattern was stable and of long duration. As noted, it was DMH’s burden to prove or establish that Meyer was not capable of performing her job duties as of the date of the demotion decision. (Overton, supra, 46 Cal.App.3d at p. 725.) Substantial evidence supports the ALJ’s determination that DMH failed to meet its burden.
Disposition
The judgment is affirmed. Lorene “Lucky” Meyer shall recover her costs on appeal.
We concur: Pollak, J.Jenkins, J.