Case No. VSA-0230 (OHA May 3, 1999)

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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.

May 3, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: February 23, 1999

Case Number: VSA-0230

This determination considers a Request for Review and Statement of Issues filed by the Office of Security Affairs (OSA) of the Department of Energy, concerning the eligibility of XXXXXXXXXXX (hereinafter referred to as the individual) to hold 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

The events leading to the suspension of this individual’s access authorization are fully set forth in Personnel Security Hearing (Case No. VSO-0230), 27 DOE ¶ 82,789 (1999). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

A DOE Security Office learned of certain derogatory information about this individual, which caused it to suspend her access authorization. That Office issued a Notification Letter to the individual, citing derogatory information that falls within subsections J and H of 10 C.F.R. § 710.8 (Criteria J and H).

Criterion J covers information that shows that an individual drinks habitually to excess or has been diagnosed as alcohol dependent or as suffering from alcohol abuse. To support this charge, the Notification Letter states in part that the individual admits having one or two alcoholic drinks every other day; had two arrests for Driving Under the Influence of Alcohol (DUI), one in 1997 and one approximately 15 years earlier; and was diagnosed by a DOE consultant psychiatrist (DOE psychiatrist) as suffering from “Alcohol Abuse/Dependence.”

Criterion H covers information that an individual has an illness or mental condition which in the opinion of a board-certified psychiatrist causes or may cause a significant defect in judgment or reliability. According to the Notification Letter, the DOE psychiatrist diagnosed the individual as suffering from a narcissistic personality disorder (moderate).

A hearing was convened in order to allow the individual to resolve the doubt regarding her continued eligibility for access authorization. Four witnesses testified at the hearing: the DOE psychiatrist, the individual, the individual’s personal internist and the individual’s supervisor.

Based upon the testimony at the hearing and other evidence presented in this case, the Hearing Officer issued an Opinion determining that the individual’s access authorization should be restored.

With respect to the security concerns regarding alcohol abuse/dependence, the Hearing Officer considered the testimony of the individual’s internist who stated that he did not believe that the individual consumed alcohol in excessive amounts. He found that testimony to be more persuasive than the views of the DOE psychiatrist. The Hearing Officer found no recurring pattern of conduct that would support the abuse/dependence diagnosis.

In considering the diagnosis of a narcissistic personality disorder (Criterion H), the Hearing Officer pointed out that the DOE psychiatrist believed that the individual’s narcissistic personality disorder did not adversely affect her judgment and reliability, except to the extent that it made her resistant to treatment for her “alcohol abuse and dependence.” Transcript of Personnel Security Hearing (hereinafter Tr.) at 27. The Hearing Officer concluded that this disorder did not constitute a security risk.

Accordingly, he determined that the individual does not suffer from any condition related to Criterion H or J. He therefore recommended that the individual’s access authorization be restored.

II. Statement of Issues and Response

In its Statement of Issues, the OSA asserts that in reaching a determination regarding Criterion J, the Hearing Officer gave undue weight to the testimony of the individual’s internist. The OSA contends that the DOE psychiatrist’s opinion was entitled to greater weight because he was able to administer superior diagnostic measures and further because the individual’s internist did not make a diagnosis based on an evaluation of the individual’s mental/emotional status. (2)

In her Response, the individual argues that her internist is indeed qualified to render an expert opinion with regard to whether she has an alcohol abuse/dependence problem, because he has known her for ten years and sees her regularly. The individual further points out that her supervisor testified that she had not observed that the individual had problems at work related to alcohol use. Finally, the individual contends that two DUIs 15 years apart do not support a diagnosis of alcohol abuse/dependence.

III. Analysis

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals 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 a rule, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996).

As discussed below, in the present case, I find that the Hearing Officer committed an error by according undue weight to the testimony of the individual’s internist. After according what I consider to be appropriate weight to the testimony of the DOE psychiatrist and the individual’s internist, I find that the individual’s access authorization should not be restored.

My conclusion is based on undisputed evidence in the record regarding the individual’s conduct, including the DUI, her own testimony about her alcohol consumption, and on the DOE psychiatrist’s report and his testimony about the individual. I shall explain this in detail later. First, however, I must express certain reservations about the record in this case. There were some weaknesses in the evaluation and testimony provided by the DOE psychiatrist. For example, I find that the basis of his diagnosis of “alcohol abuse/dependence” is unclear. Alcohol abuse and dependence are terms used in Criterion J. They are also medical terms, which are defined in the Diagnostic and Statistical Manual- IV of Mental Disorders of the American Psychiatric Association (4th ed. 1994)(DSM-IV). In these personnel security administrative review cases, when medical experts have referred to “alcohol abuse” and “alcohol dependence,” they frequently are referring to substance abuse and dependence, as those terms are used in the DSM. E.g., Personnel Security Hearing (Case No. VSO-0120), 26 DOE ¶ 82,772 (1997).

According to the DSM-IV, the criteria for substance abuse cover a pattern of use that, within a 12 month period, results in:

(1) a recurrent failure to fulfill work, school or home obligations; (2) recurrent substance use in physically dangerous situations (3) recurrent substance-related legal problems or (4) continued use despite persistent social or interpersonal problems caused by use of the substance.

See DSM-IV at 182-3.

The DSM-IV defines substance dependence as a maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following occurring at any time in the same 12-month period:

(1) tolerance; (2) withdrawal; (3) the substance is often taken in larger amounts or over a longer period than was intended; (4) a persistent desire or unsuccessful efforts to cut down or control substance abuse; (5) a great deal of time spent in activities necessary to obtain the substance, use the substance, or recover from its effects; (6) important social, occupational or recreational activities are given up or reduced because of substance use; (7) the substance use is continued despite knowledge of having a persistent recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance.

See DSM-IV at 181.

The evidence in this case does not on its face suggest that the individual meets the DSM-IV criteria for substance abuse or substance dependence referred to above. There is no evidence that within a 12 month period the individual has had recurring legal, social, occupational or personal difficulties like those set forth in the substance abuse section of the DSM. There is further no evidence of tolerance, withdrawal or difficulties associated with increased use, as enunciated in the substance dependence section of the DSM.

The DOE psychiatrist did not refer to the DSM either in his report evaluating this individual or in his testimony at the hearing. He did not provide any other recognized scientific or medical reference point for his conclusion that this individual is “alcohol abuse/dependent.” At the hearing, in an interchange between the DOE counsel and the DOE psychiatrist, the psychiatrist explained his diagnosis in the following manner:

Q Just again to summarize, what are the factors that led you to the alcohol abuse and dependence diagnosis?

A I think that her regular consumption of alcohol to excess, the fact that it has led to two DUI arrests and that she has times in which she is fuzzy or does not clearly recall the events of the night before when she was drinking. So it has affected her within the legal system and I think the amount that she is drinking will affect her eventually medically, if it has not already.

Tr. at 17.

This very general explanation was not supported by particularly convincing evidence. For example, while the DOE psychiatrist believed that the individual minimized the amount of alcohol she consumes, he did not express what he thought her true consumption amount to be or the basis for that conclusion. Tr. at 31.

In support of his opinion that the individual is alcohol abuse/dependent, the DOE psychiatrist offered his belief that the individual was inconsistent and untruthful about several important relevant matters during the evaluation. He stated that the psychological tests that he administered showed evasion. He indicated that inconsistency and evasion of the truth are signs of alcohol problems. Tr. at 36, 38, 41. One example of an evasion that the DOE psychiatrist described involved whether or not the individual’s family was critical of her alcohol drinking habits. The DOE psychiatrist did not believe the individual’s assertion that her family had not criticized her in this regard. However, he provided no support for his doubts, other than his general view that he believed her to be evasive. He pointed out as an inconsistency that the individual agreed with her sister’s statement that alcohol is “bad for you,” yet she nevertheless continued to consume it. Tr. at 36. This does not strongly establish a significant inconsistency in the individual’s version of her pattern of alcohol use.

The DOE psychiatrist also believed that the individual’s statement that she had a “fuzzy” recollection after drinking, was an indication of an alcohol problem. However, other than the night of her second DUI, he had not elicited any specific times from the individual when this “fuzziness” had occurred. Tr. at 48.

The DOE psychiatrist also pointed out that the individual had experienced a legal problem associated with the second DUI, and stated that the DUI has taken her “off the job and meets one of the major criteria for determining alcohol dependence problems.” Tr. at 46. In this, the DOE psychiatrist seems to be making a general reference to one of the DSM criteria for substance abuse, rather than dependence. However, this criterion requires “recurrent substance use resulting in. . . repeated absences or poor work performance related to substance abuse.” DSM-IV at 182, Criterion A(1). The record does not support alcohol use to that degree.

Overall, I am not totally satisfied with the foundation for the DOE psychiatrist’s position in this case. The support for his evaluation should have been more thoroughly developed in the pre- hearing phase of this proceeding and more fully probed at the hearing itself. At a minimum, the DOE psychiatrist should have been asked to testify about his definition of “alcohol abuse/dependence” as applied in this case, and how the individual’s behavior met the standard he adopted.

However, even though the DOE psychiatrist failed to provide a meticulously developed articulation of the individual’s alcohol consumption problems pursuant to Criterion J, this certainly does not mean that the individual is automatically entitled to an access authorization. See Personnel Security Review (Case No. VSA-0164), 27 DOE ¶ 83,006 (1998). Once a cognizable security concern regarding use of alcohol is raised by the DOE, it is the obligation of the affected individual to mitigate that concern. See Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996).

In the instant case, despite the weaknesses of the DOE psychiatrist’s evaluation, the individual was clearly on notice of the precise nature of the DOE’s concern. It was evident from the Notification Letter that the concern related to excessive use of alcohol by the individual. Based on the witnesses that she brought forward in this case, it is also evident that the individual clearly understood the type of information that was required to mitigate that concern. As stated above, she brought forward her internist and her supervisor, who discussed their knowledge of her alcohol consumption. Both witnesses supported the individual’s general position that she does not have any problems associated with alcohol use. Thus, although there were weaknesses in the DOE psychiatrist’s testimony, and in the development of the evidence in this case, I do not believe that the individual was prejudiced or impeded in any meaningful way in her ability to mitigate the DOE’s concerns.

After reviewing the evidence that the individual has offered, I cannot find that she has mitigated the DOE’s concerns. As an initial matter, the testimony of the individual’s internist was insubstantial. He stated that he has known the individual for ten years, has treated her on a regular basis for that period, believes that she is candid with him, and has never seen any symptoms of alcohol related problems. Tr. at 73, 75, 78, 81. He indicated that he has also been with the individual in social situations and has not observed her using alcohol in excessive amounts. Tr. at 77-78.

This testimony is simply not sufficient to mitigate the security concerns raised here. I note that the individual’s internist indicated that he had not reviewed the evaluation letter of the DOE psychiatrist. Tr. at 81. Thus, he was not sufficiently knowledgeable to discuss and reply to the psychiatrist’s conclusions. He indicated that he had not performed an in-depth diagnosis using clinical psychological tests. Id. Further, although the internist stated that during a recent office visit he and the individual “talked about alcohol,” he did not indicate specifically what they discussed, whether he asked the individual about her alcohol use and what the individual herself had to say about this issue. Tr. at 75. There is no evidence that he posed the same types of detailed questions about alcohol use that a DOE consultant psychiatrist typically asks in such interviews. This was the very type of evidence which was well within the individual’s ability to elicit from her internist, if he were knowledgeable about these matters.

In fact, the individual should have retained an expert in matters of alcohol abuse to evaluate her and provide an informed and impartial opinion on this issue. (3) The individual’s internist is not an expert in the area of alcohol abuse. Even if the internist had conducted an in-depth examination, given the individual’s long-term relationship with the internist, which included social as well as professional contacts, I do not believe the internist’s testimony is entitled to the weight normally accorded to the testimony of an impartial medical witness in these proceedings. Moreover, since alcoholism is not a field of practice in which he specializes, his opinion lacks the special significance which an expert’s opinion is entitled to receive. I therefore believe it was erroneous for the Hearing Officer to express considerable confidence in the internist’s view that the individual in this case has no alcohol-related problems.

In view of these limitations, the testimony of the individual’s internist should have been accorded no more weight than that of an ordinary character witness. I therefore find an error in the Hearing Officer’s determination that the individual’s internist was as qualified as the DOE psychiatrist to render an expert opinion on the individual’s pattern of alcohol use. (4)

The testimony of the other character witness offered by the individual was not significant. The individual’s supervisor testified that she did not believe that the individual had any problems related to alcohol consumption. (5) However, the individual’s supervisor did not seem to have regular contact with the individual outside the workplace, and only saw her periodically in social situations in which the individual consumed alcohol. She did not indicate the frequency of these periodic gatherings, but the testimony suggests that they were not common occurrences. She did not seem to be knowledgeable about the individual’s private use of alcohol. Thus, she was not able to offer significant testimony about the individual’s alcohol consumption patterns, including daily use.

The individual testified about her own day-to-day alcohol use. However, while such testimony is useful and important, in and of itself it is not sufficient. On such a critical point, an individual whose eligibility for a clearance is being reviewed has too much self interest at stake to be considered a reliable or impartial witness. We therefore expect some independent corroboration on this key point. Personnel Security Hearing (Case No. VSO-0219), 27 DOE ¶ 82,779 (1998). In this regard, the individual did not bring in the very witnesses who would be in an especially good position to discuss her use of alcohol on a day-to- day basis: her family and her fiancé. These individuals would also have been able to testify under oath about whether they believe that she regularly consumes alcohol to excess, and whether they believe alcohol consumption poses any problems for her.

Given the DOE psychiatrist’s report, and the DUI in 1997, it should be been obvious to the individual that this is an area of critical concern. It was particularly important that this testimony be introduced to rebut negative inferences that tend to follow from the individual’s own statements. The individual noted that she occasionally becomes moderately intoxicated, which she explained would be after about four alcohol drinks. Personnel Security Hearing (Case No. VSO-0230), 27 DOE at 85,741. During 1997, when the arrest for driving under the influence occurred, her statements tend to indicate that she drank to the point of intoxication more than once, and possibly as often as four times. She drove a car under these circumstances at least once in 1997, and whether she drove more often while drunk is unclear.

In view of the above, I find that the evidence brought forth by this individual was not sufficient to mitigate the DOE’s security concerns associated with excessive use of alcohol.

IV. Conclusion

As indicated by the foregoing, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, 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: May 3, 1999

(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.

(2)The OSA did not state any objection to the Hearing Officer’s finding with respect to Criterion H.

(3)The Hearing Officer urged the individual to obtain the evaluation of an independent psychiatrist on this issue. Memorandum of September 22, 1998 Telephone Conversation.

(4)This is not to say that the testimony of an individual’s own internist regarding alcohol use may never be accorded expert status. For example, if that physician had specifically performed an in-depth evaluation of the individual’s alcohol use, it would not necessarily be erroneous for a Hearing Officer to disregard the long term relationship and give that evaluation greater weight than I am willing to accord the testimony of the internist in this case.

(5)There is no indication that the individual ever used alcohol while on the job, or was absent from work due to alcohol use. The individual’s supervisor stated that she trusts the individual’s work and that the absentee rate for this individual is average. Tr. at 90.