Case No. VSA-0126, 26 DOE ¶ 83,018 (OHA September 23, 1997)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

September 23, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: August 7, 1997

Case Number: VSA-0126

This Opinion determination considers a Request for Review filed by XXXXXXXXXXXXX (hereinafter referred to as "the individual") concerning his eligibility to retain an access authorization. (1) The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.”

I. Background

This case concerns the suspension of the individual’s access authorization. In a random drug screening, the individual tested positive for a metabolite of cocaine. A DOE Personnel Security Specialist conducted a Personnel Security Interview (PSI) with the individual in which he was given an opportunity to explain the positive test for cocaine. He repeatedly and emphatically maintained that he had never used cocaine. The PSI did not resolve the security concerns of the DOE Office, which then suspended the individual’s access authorization. The administrative review

process was commenced when the DOE Office issued a Notification Letter to the individual stating that it had information that created a substantial doubt concerning his continued eligibility for access authorization. The Notification Letter specified three areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter set forth an allegation with respect to 10 C.F.R. §710.8 (k) (Criterion K) that the individual used cocaine.(2) Second, under 10 C.F.R. § 710.8(f) (Criterion F), the Notification Letter stated that by denying that he ever used cocaine, the individual intentionally provided false information during the PSI.(3) Third, the Notification Letter charged under 10 C.F.R. § 710.8(l) (Criterion L) that the individual (1) “engaged in unusual conduct or is subject to circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security,” and (2) violated the terms of his DOE Drug Certification. The individual filed a request for a hearing in which he denied the allegations of cocaine use and ascribed the positive test for cocaine to “foul play somewhere along the chain of custody line or a major mix-up in sampling results.” This request was forwarded to the Office of Hearings and Appeals (OHA) and a Hearing Officer was appointed.

At the hearing, the DOE presented as witnesses the DOE Personnel Security Specialist who had conducted the PSI, a former supervisor of the individual, the Medical Service Operator (MSO) who had supervised the individual’s provision of the positive urine specimen, and the DOE Contractor’s substance abuse coordinator. The DOE also called two expert witnesses, the director of the drug testing laboratory at which the individual’s urine sample was tested, and a drug testing expert who assists government agencies and private companies in the monitoring of drug testing programs. The individual testified on his own behalf and called a total of eight other witnesses, including four of his present and past supervisors, three of his friends and his spouse.

Based upon the testimony at the hearing and other record evidence, the Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (VSO-0126), 26 DOE ¶ 82,776 (1997). The individual filed a Request for Review that included a Statement of Issues to be reviewed (hereinafter referred to as “the Statement” or “the Statement of Issues”). 10 C.F.R. §710.28(a), (b). The DOE Office of Safeguards and Security filed a response, stating that it concurred with the recommendation of the Hearing Officer and had no additional information to submit in this proceeding.

II. The Hearing Officer’s Opinion

The Hearing Officer first noted in his Opinion that the DOE’s contention that the individual used cocaine was based on the individual’s urine specimen that tested positive for a metabolite of cocaine. (4) The Hearing Officer then proceeded to consider whether the specimen was actually provided by the individual, whether the methodology used to test the specimen was reliable and whether the positive rest result could be caused by factors other than illegal drug use. The Hearing Officer exhaustively reviewed hearing testimony regarding the collection of the sample, the laboratory storage and testing procedures and chain of custody issues. He concluded that the individual had provided the urine specimen in question. The Hearing Officer also considered expert testimony regarding the methodologies used to determine whether the specimen contained evidence of illegal drugs. He found that the accuracy and reliability of the methodologies used were widely recognized. He therefore concluded that the urine specimen provided by the individual did indeed contain the cocaine metabolite.

He also found that the individual had offered no credible evidence that the wrong sample was tested, that this sample was contaminated, or any other evidence that his ingestion of some other substance might have caused a false positive test result. Based on these findings, the Hearing Officer determined that the individual failed to resolve the security concerns raised under Criterion K. Further, the Hearing Officer found the individual provided false information to the DOE by repeatedly denying that he ever used cocaine. The Hearing Officer concluded that this raised an unresolved security concern under Criterion F. Finally, the Hearing Officer concluded that the individual’s drug use and provision of false information raised serious security concerns under Criterion L, with respect to his honesty, reliability, and trustworthiness. Accordingly, the Hearing Officer found that the individual’s access authorization should not be restored.

III. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that it would be clearly consistent with the national interest to restore the access authorization of the individual.

As a general rule I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. Compare Pullman Standard v. Swint, 456 U.S. 273 (1982), with Amadeo v. Zant, 486 U.S. 214, 223 (1988), quoting Federal Rule of Civil Procedure 52 (a). See also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, the hearing officer, who was present for the testimony of the witnesses, is in the best position to assess their demeanor and credibility, as well as to determine the appropriate weight to be given to their testimony. Personnel Security Review (Case No. VSA- 0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore I will not ordinarily supplant my judgment for that of a hearing officer in such matters. Id.

B. Statement of Issues

The Statement of Issues sets forth 20 numbered objections to the Hearing Officer’s Opinion. These objections each cite to page and line numbers in the hearing transcript. The objections then proceed to raise specific arguments regarding the testimony referred to. In this regard, some objections allege that the Hearing Officer did not consider specified portions of the transcript in his Opinion. The Statement seems to argue that had the Hearing Officer given due consideration to these portions of the transcript, he would have decided that the test sample was flawed and that the individual’s security clearance should be restored.

As an initial matter, the fact that the Hearing Officer did not specifically address in his Opinion any particular item of testimony does not in and of itself establish that there was any error. The hearing in this matter took place over a two-day period, and lasted approximately 12 hours. The transcript is 459 pages long. It is obvious that the Hearing Officer could not reasonably be expected to address every line of testimony, nor was it necessary or proper for him to do so in reaching his ultimate conclusion. The Hearing Officer must provide a reasoned basis for his determination regarding whether or not restoration of the security clearance would not endanger the common defense and would be clearly consistent with the national interest. 10 C.F.R. §710.27(a). He must make specific findings supported by reasons based upon the record as to the validity of each of the allegations contained in the Notification Letter. 10 C.F.R. §710.27(c). He must also consider the factors laid out in 711.7(c). The Hearing Officer’s Opinion certainly meets these requirements. I see no automatic error in the fact that any particular item of testimony was not addressed in the Hearing Officer’s Opinion.

Therefore, the questions I must consider on appeal are (a) whether there is any specific error in the Hearing Officer’s Opinion, such that his recommendation should be reversed, and (b) whether, after reviewing the record in this matter, I find that restoring the individual’s access authorization would not endanger the common defense and would be clearly consistent with the national interest. As discussed below, my response to each of these two questions is negative.

The 20 numbered objections that the individual has submitted in his Statement of Issues relate to four main subjects: (a) ethics issues(5); (b) reliability of laboratory procedures (6); (c) weight of evidence accorded by the Hearing Officer to the testimony of witnesses (7); and (d) a new matter concerning the individual’s rehabilitation.(8) I will consider the objections by subject category.

1. Ethics Issues

With respect to ethical issues, the Statement of Issues, citing the hearing transcript, refers to portions of the hearing in which the Hearing Officer allegedly acted improperly. For example, the Statement cites an interchange between the Hearing Officer and the individual’s attorney in which the Hearing Officer stated what the DOE counsel “is going to do.” According to the Statement of Issues, this statement is evidence that an impermissible ex parte conversation took place between the Hearing Officer and the DOE counsel, in which the DOE counsel informed the Hearing Officer of his intentions in this case. I do not agree. The individual’s assertion shows a misreading of the transcript. The Hearing Officer specifically stated “I will let [the DOE Counsel] make their case, but what’s common is that I believe that DOE is going to claim the...drug test is evidence that he was using an illegal drug, cocaine.” Transcript of Hearing (hereinafter Tr.) at 10. I see no evidence here of any improper contact. The Hearing Officer was simply stating what he believed the DOE Counsel’s position would be. As the Hearing Officer indicated, this was based on his considerable experience in these matters. It was also obviously based on his overall knowledge of the case at hand.

The Statement also claims that the Hearing Officer failed to exercise his ethical obligation to elicit information favorable to the individual. Section 710.26(d) provides that the DOE Counsel shall assist the Hearing Officer in...bringing out a full and true disclosure of all facts, both favorable and unfavorable, having a bearing on the issues before the Hearing Officer.” After reviewing the record in this case, I see no evidence of any failure to develop the record fully. The Hearing Officer gave the individual and his attorney every opportunity to introduce all the evidence that they wished to present in this case. The Statement cites no instance in which the Hearing Officer failed to allow the individual to introduce appropriate favorable evidence, and I see none in the record. The hearing transcript plainly shows that the Hearing Officer actively participated in the hearing and assured that all sides of the case were developed. E.g., Tr. at 154-68; 239-41.

The Statement also claims that the Hearing Officer unfairly attempted to rush through the hearing, and cites several portions of the hearing transcript in this regard. The cited interchanges involve the Hearing Officer’s attempts to gauge the scheduling of witnesses, and the overall length of time necessary to complete the hearing.

The regulations at Part 710 specifically provide that one of a Hearing Officer’s functions is to regulate the course of the hearing. 10 C.F.R. § 710.25(d). The hearing in this case included 15 witnesses and took place over a two-day period. It was therefore not only proper, but necessary for the Hearing Officer to consider the length of time a witness’ testimony might take and when any particular witness should be scheduled to appear. The transcript indicates that the Hearing Officer entered into discussions with the parties regarding this scheduling, and that the attorney for the individual readily agreed to scheduling determinations made by the Hearing Officer. E.g., Tr. at 292, 454.

I further note no suggestion in the Statement of Issues that any testimony that the individual wished to offer was precluded based on any time constraints imposed by the Hearing Officer. From my overall review of the hearing transcript I see no evidence that there was any unfairness or prejudice to the individual that resulted from the scheduling discussions engaged in by the Hearing Officer. Accordingly, I find no error in the Hearing Officer’s determinations in this regard.

The Statement further alleges that the Hearing Officer was unethical and unprofessional by stating that he was “allowing activity outside of ?Federal Guidelines.’” After referring to the portion of the hearing transcript cited in this regard, I find this contention without any basis whatsoever. At this point in the hearing, the individual’s attorney objected to a leading question asked by the DOE counsel of his own witness. The Hearing Officer overruled the objection, pointing out that “we’re not strictly observing the Federal Rules of Evidence” in these administrative proceedings. Tr. at 151. I see no ethical breach or error of law by the Hearing Officer in this regard. The Part 710 regulations provide considerable latitude in the type of evidence that may be admitted, and specifically state that formal rules of evidence shall not apply, but that the Federal Rules of Evidence may be used as a guide. 10 C.F.R. § 710.26(h) Thus, it was proper for the Hearing Officer to allow a leading question, if he believed that doing so would produce material and relevant information. Contrary to the assertion by the Statement of Issues, I see no evidence that the Hearing Officer allowed an activity outside of the “Federal Guidelines.” I believe that the individual is simply under a misapprehension about the meaning of the Hearing Officer’s reference to the Federal Rules of Evidence.

The Statement also cites the last statement at the hearing by the Hearing Officer that the individual “will be notified of his right to request further review of his case through the Director at the Office of Hearings and Appeals.” Tr. at 459. The Statement argues that this assertion by the Hearing Officer shows that he had already made a decision in this case by the end of the hearing and therefore did not fully consider the testimony elicited at the hearing. The Statement therefore charges that the Hearing Officer acted unethically. I see no ethical violation or evidence of prejudgment of the case arising from this assertion by the Hearing Officer. The Hearing Officer was simply notifying the individual of his further procedural rights in this case. He would have been remiss in not doing so.

In sum, based on my review of the record and of the Hearing Officer’s Opinion, I see no ethical violations by the Hearing Officer in this proceeding.

2. Laboratory Procedures

The Statement of Issues also alleges that the Hearing Officer failed to consider evidence showing that the laboratory procedures which resulted in the positive cocaine screen were flawed. The individual seems to believe that human error in the laboratory procedures caused his positive drug screen. In particular, the Statement cites to portions of the hearing transcript which involve testimony regarding the completion of the chain of custody form for the urine sample provided by the individual. The MSO testified that she completed (by signing) a portion of the chain of custody form prior to administering the specimen collection. The Statement alleges that this deviation from established procedures is a cause for concern about the validity of the test, and that this was not considered by the Hearing Officer.

In fact, the Hearing Officer specifically referred to this issue in his Opinion. He stated in this regard that while “deviance from established policy is a cause for concern, the same MSO indicated that the collection of the specimen had actually conformed to all applicable standards.” Personnel Security Hearing (Case No. VSO- 0126), 26 DOE ¶ 82,776 at 85,683. The Hearing Officer concluded that the specimen provided by the individual was properly collected, labeled and sealed when it was delivered to the courier later that day. After reviewing the cited portions of the hearing transcript and the relevant exhibits (DOE Exhibits #3 and #4), I am convinced that the Hearing Officer’s conclusion is correct. There is no evidence in the record to suggest that there was any irregularity in the chain of custody of this specimen.

The Statement also suggests that the laboratory that performed the drug test may not have been reliable. It supports this claim by pointing out that federal certification inspections of laboratories are pre-scheduled, so that the laboratories know when the inspection will take place. The president of a consulting service that assists government agencies and private companies in the monitoring of drug testing programs testified that “there’s always the possibility that they’re going to...be on their best appearance when the inspectors arrive.” Tr. at 24.

The mere fact that a laboratory is aware of an inspection does not in any way establish or even suggest that its procedures may be substandard at other times. In his Opinion, the Hearing Officer specifically pointed out the testimony of the president to the effect that this was a particularly high caliber laboratory. Personnel Security Hearing (VSO-0126), 26 DOE ¶ 82,776 at 85,684 (1997). The Hearing Officer also noted the president’s testimony that he had reviewed the documentation of the chain of custody at the laboratory and found that it was intact and well documented. Id. The Hearing Officer concluded that the specimen attributed to the individual was indeed provided by the individual, and that the methodology used to test the specimen produces accurate results. Id. at 85,685. After reviewing the Hearing Transcript, I see no error with regard to that conclusion and no reason to suspect the reliability of this particular laboratory.

As the Hearing Officer noted in his opinion, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Id. at 85,681-2. It is true, as the Hearing Officer stated, that human error can never be completely removed from any testing program. Id. at 85,686. However, an individual who argues that an irregularity in drug test procedures caused a false positive must bring forward evidence to convince the Hearing Officer that this contention is correct. In this proceeding, the individual merely raised a conjecture as to how it might have happened that his drug screen could have been positive, even though he allegedly never ingested cocaine. He contends that mistakes may have been made in the collection process and laboratory procedures.

Merely offering an alternative theory to explain a positive drug screen is not sufficient. Personnel Security Hearing (VSO-0078), 25 DOE ¶ 82,802 (1996). In order for me to accept that theory, the individual would have to persuade me that it was true in his case. The burden of the individual who has a positive drug test is not only to show that there exists a possible explanation, aside from his own intentional ingestion of the drug. In order to prevail, he must provide sufficient evidence in support of that explanation. Personnel Security Review (VSA-0051), 25 DOE ¶ 83,012 (1996). In this case, the individual has made numerous unsubstantiated allegations of unfairness and possible failure to follow procedures. However, he has not supported any of these allegations with any evidence, or shown how they apply directly to his own positive drug screen. I therefore cannot give any credence to these unfounded contentions.

3. Weight of Evidence

The individual also contends that the Hearing Officer did not give proper weight to evidence provided by character witnesses. In particular, the individual believes that the Hearing Officer should have given greater weight to testimony provided by his current supervisor, by a line facility manager, and by a cousin who has known the individual all of his life.

Under the Part 710 regulations, the Hearing Officer is responsible for considering the demeanor of witnesses, the probability or likelihood of the truth of their testimony and their credibility. 10 C.F.R. § 710.27(b). Since the Hearing Officer was actually able to observe the witnesses, his assessment of their credibility deserves much deference on review. Therefore, absent some serious material error, I will not overturn his judgment as to the appropriate weight to be accorded their testimony. Personnel Security Review (VSA-0051), 25 DOE ¶ 83,012 at 86,560.

In the present case the Hearing Officer reviewed the testimony of the witnesses, noting that they stated that they did not know of any reason to believe that the individual had ever used illegal drugs. However, the Hearing Officer concluded that the testimony of these witnesses was insufficient to overcome the strong evidence of cocaine use based on the positive drug test. The Hearing Officer pointed out that it would have been possible for the individual to have consumed cocaine without any of these witnesses’ knowledge. I see no error in that determination.

Moreover, after reviewing the testimony of the three witnesses particularly cited by the individual, I see no basis for any reversal of the Hearing Officer’s determinations concerning weight of evidence. It was the testimony of all three of these witnesses, who were primarily familiar with him and his conduct through personal contact at the workplace, that the individual’s behavior was not like that of a person who was a drug user. Tr. at 297, 337, 348. (9) These witnesses all stated that they had not seen in the individual signs typical of a drug use problem, such as mood swings, unusual behavior, judgment problems or absenteeism. However, it is unlikely that a person who had used cocaine off the job on a one-time or infrequent basis would exhibit any of these problems, or display any unusual behavior that could be detected by fellow employees on the job. Thus, the testimony of these witnesses to the effect that this individual’s behavior was not consistent with that of a cocaine user does not shed any light on the issue of whether this individual used cocaine on a one-time basis. As the Hearing Officer stated, these witnesses are not even likely to have been aware of the individual’s isolated or irregular use of cocaine. Accordingly, I will not reverse the Hearing Officer’s assessment of the weight to be given to the testimony of these witnesses.

4. Rehabilitation

The individual has included with his Statement of Issues a copy of a certificate entitled “Notification of Successful Rehabilitation.” The Notification gives a date on which the individual successfully completed his rehabilitation under his employer’s substance abuse program. (10) The issue of rehabilitation was not explicitly considered by the Hearing Officer in his Opinion. Accordingly, I will consider the issue as a matter of first impression at this point in the proceeding.

At the hearing the individual testified that because of his positive drug test, he was required to attend a drug treatment program or lose his job. Tr. at 451.(11) He said that he did all that was expected of him in terms of involvement in the program and attendance at meeting. Tr. at 452. The individual also stated that he told the program’s counselors that he had been wrongly accused of taking illegal drugs. Tr. at 453. Although the individual testified that he was actively involved in the rehabilitation program, he also gave conflicting testimony to the effect that most of the time he did not pay attention to what was being said, because he did not relate to other individuals with chemical abuse problems. Tr. at 426. He stated that he thought it was a waste of time to attend the program. Tr. at 425. The Statement of Issues characterizes the drug treatment program as “total joke” and a waste of time.

I am unpersuaded by the assertion on the form the individual provided that he has successfully completed rehabilitation. Rehabilitation connotes an understanding that a problem existed requiring treatment. That is not the case here. As stated above, the individual continued to deny illegal drug use to his counselors, did not pay attention during the counseling sessions, and believed the program to be a waste and a joke. I fail to see how the person who signed the form could in good faith certify rehabilitation of this individual under these circumstances. I therefore cannot accept the certification that the individual has successfully completed the program. In fact, I am dismayed at what appears to be a pro forma certification of completion of rehabilitation, given the individual’s manifest lack of commitment to the program and his hostile attitude.(12) I conclude that the Notification of Successful Rehabilitation is meaningless.

In sum, the new evidence submitted by the individual and the arguments raised in the Statement of Issues do not establish that there was any error on the part of the Hearing Officer in this case. I cannot find that restoring this individual’s access authorization would not endanger the common defense and security and will be clearly consistent with the national interest.

IV. Conclusion

As indicated by the foregoing, it is my opinion that the individual’s access authorization should not be restored. 10 C.F.R. § 710.28(d).

The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual’s access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

Date: September 23, 1997

(1)1/ An “access authorization” is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

(2) Criterion K applies to information indicating that the individual has “[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.” 10 C.F.R. § 710.8(k).

(3)Criterion F applies to information indicating that the individual has “[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f).

(4)The DOE also based its conclusion that the individual used cocaine on the individual’s participation in an outpatient drug program. The Hearing Officer found that participation in that program did not alone establish that the individual used drugs, inasmuch as the individual was given an ultimatum by his employer to either participate in the program or resign.

(5)These issues are raised by items 1-4, 12, 16, 19 and 20.

(6)This matter is raised in items 6-11, and 13-16.

(7)This issue is raised in items 17 and 18.

(8)This subject is raised in item 5.

(9)The individual’s cousin did have contact with him outside the workplace. In fact, the two briefly lived as roommates. However, it has been many years since the two lived together. In spite of the cousin’s assertion that he was “close” to the individual, the two appear to have only superficial social contact in recent periods. Tr. at 348. The cousin did not seem to have any significant knowledge of the individual’s personal life. Tr. at 353.

(10)Technically, this item is new evidence under 10 C.F.R. § 710.29, and should have been submitted to the Office of Hearings and Appeals through the Director, Office of Safeguards and Security. Since that Office has had an opportunity to comment on this piece of evidence, I see no harm in considering it.

(11)At the time of the hearing, the individual had not yet completed the designated rehabilitation program. Tr. at 452. Given my ultimate determination that the Notification of Successful Rehabilitation is of no avail, I will not consider here if it is appropriate to include the period of rehabilitation that takes place after the close of the hearing in evaluating whether an individual’s security clearance should be restored.

(12)As a matter of agency policy, Hearing Officers urge persons who are the subject of these proceedings to submit all relevant evidence for consideration at the hearing. Evidence can thus be tested and verified, and made subject to cross examination or addressed by other experts. In addition to the problems I have noted in the text above, the Notification of Successful Rehabilitation in this case was not submitted at the hearing. I recognize that the rehabilitation was purportedly completed after the date of the hearing. Nevertheless, the fact remains that neither I nor the Hearing Officer have had an opportunity to examine and cross examine the individual’s drug counselors as to their basis for concluding that rehabilitation was successful. This fact also lessens any weight the individual desires me to give the Notification of Successful Rehabilitation.