Case No. VSO-0011, 25 DOE ¶ 82,751 (H. O. Breznay Mar. 22, 1995)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Review

Date of Filing: November 8, 1994

Case Number: VSO-0011

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1>

I. Background

The individual has been employed by XXXXX (XXXXX), the Department of Energy (DOE) contractor that operates the XXXXX, in XXXXX, since XXXXX. At that time, the individual also received a "Q" clearance enabling her to work at the facility. In 1993, the DOE/XXXXX Operations Office (DOE/XXXXX) Personnel Security Division began a re-investigation into the individual's background. As part of this re-investigation, the Personnel Security Division conducted a Personnel Security Interview (PSI) with the individual and initiated a DOE-sponsored mental evaluation of the individual by a board-certified psychiatrist. Following the issuance of the psychiatrist's evaluation, the Director of the Personnel Security Division of DOE/XXXXX determined that information uncovered during the investigation was substantially derogatory and created questions regarding the individual's eligibility for access authorization. Accordingly, the DOE/XXXXX's Manager suspended the individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

The administrative review proceeding was commenced by the issuance of a September 9, 1994 letter which notified the individual that the information possessed by the DOE created a substantial doubt concerning her continued eligibility for a "Q" access authorization. I will hereinafter refer to this letter as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information possessed by the DOE. Specifically, the Notification Letter included information described in 10 C.F.R. § 710.8(h). The Notification Letter also informed the individual that she was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding her continued eligibility for access authorization.

On September 29, 1994, the individual's attorney filed a request for a hearing with the DOE/XXXXX Manager. At that time, the individual's attorney chose not to file a separate written response to the information that raised the doubt concerning this access authorization. Under the regulations, this type of request for a hearing is deemed a general denial of all the reported information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). The DOE/XXXXX forwarded the individual's request for a hearing to the Office of Hearings and Appeals (OHA) of the DOE.

On November 18, 1994, I elected to act as the Hearing Officer in this case with the knowledge of both the DOE counsel and the individual. In accordance with the regulations at 10 C.F.R. § 710.25 (e) and (g), and after consulting with both parties, I scheduled a hearing for January 25, 1995. However, shortly before this scheduled hearing, the DOE counsel requested a change in the hearing date due to an unexpected and unavoidable scheduling conflict. The parties suggested the hearing be rescheduled for XXXXXXXXXXXXXXXXX. Since the rescheduled hearing date would occur beyond the regulatory deadline of ninety days from the date the OHA received the hearing request, an extension of time from the OHA Director became necessary. See 10 C.F.R. § 710.25(g). I, as Director of the OHA, found that good cause existed for the proposed extension of time, and I approved an extension of the original hearing date. The hearing was convened in XXXXX on XXXXXXXXXXXXXXXXX.

At the hearing on XXXXXXXXXXXXXXXXX, at which the individual was represented by an attorney, the following ten witnesses testified: (1) XXXXX, a DOE Personnel Security Specialist; (2) the individual; (3) XXXXX, MD, the individual's psychiatrist; (4) XXXXX, MD, the DOE psychiatrist; (5) XXXXX, president of the employees' union at the XXXXX; (6) XXXXX, a former co-worker; (7) XXXXX, a former co-worker; (8) XXXXX, the individual's former supervisor; (9) XXXXX, the individual's current supervisor; and (10) XXXXX, a former co-worker. A list of the documentary evidence submitted in this proceeding is attached in an Appendix.<2>

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on September 9, 1994, included a listing of derogatory information in possession of the DOE that created a substantial doubt as to the individual's continued eligibility to hold a "Q" clearance. On the basis of that derogatory information, DOE/XXXXX found that the individual has an illness or mental condition of a nature that in the opinion of a board-certified psychiatrist, other licensed physician, or a licensed clinical psychologist, causes, or may cause, a significant defect in her judgment or reliability. See 10 C.F.R. § 710.8 (h). DOE/XXXXX based its finding upon the following:

(1) On March 29, 1994, XXXXX, a DOE-sponsored psychiatrist evaluated the individual and issued a psychiatric assessment stating that the individual has a mental condition, diagnosed as "Major Depression, Recurrent, which causes or may cause a significant defect in her judgment or reliability."

(2) Medical records from the XXXXX show that the individual was admitted there on August 13, 1992 experiencing severe depression and a "positive suicidal ideation."

(3) Medical records from the individual's personal physician, Dr. XXXXX, indicate that the individual was feeling suicidal on May 1, 1992, and further related that she had not sought psychiatric assistance because she was "afraid of losing her job."

(4) Medical records from the XXXXX Medical Department listed the following:

a) a treatment record made by Dr. XXXXX on January 13, 1994 indicates that the individual had been hospitalized for a Major Depressive Disorder from approximately December 7, 1993 until January 12, 1994 during which time she was also treated for "Polysubstance Dependence" at the XXXXX.

b) the individual's attending physician, Dr. XXXXX, diagnosed her on May 12, 1992 as having a Major Depressive Disorder.

c) a treatment record entry made by Dr. XXXXX on March 17, 1992 described the individual as tearful and lethargic. The individual reportedly stated that she had been using prescriptions of Klonopin and Doxepin.

d) several Certificates of Physician or Licensed Practitioner show that the individual was counseled weekly by XXXXX, Ph.D., for "psychoneurosis mixed with both passive and aggressive features and paranoia," during March and April 1981.

5)Medical records from the XXXXX contain a psychosocial assessment dated August 28, 1992 while the individual was voluntarily undergoing in-residence treatment for Major Depressive Disorder, in which it is reported that the individual acknowledged having contemplated suicide with a loaded firearm on two prior occasions.

III. Findings of Fact

Based upon my consideration of all the evidence in the record in this proceeding, including oral testimony transcribed at the XXXXXXXXXXXXXXXX Personnel Security Hearing (hereinafter Tr.), and all of the documents filed with me by the parties, I make the following findings of fact.

The individual first sought treatment for depression following her divorce from her second husband in 1973. Tr. at 252. Since that time, she has sought treatment for depression periodically under the care of several psychologists and physicians, including psychiatrists. This treatment has included counseling and drug therapy, including the use of antidepressant and anti-anxiety medications. See Tr. at 57, 59, 257. In May 1992, the individual began seeing XXXXX, MD, a psychiatrist, at the recommendation of her family physician, XXXXX, MD. Dr. XXXXX prescribed Lobutrin, an antidepressant medication. In early August 1992, the individual complained to Dr. XXXXX of her sensation that bugs were crawling all over her. DOE Exhibit U. Following a consultation with Dr. XXXXX, the individual voluntarily admitted herself into XXXXX, the psychiatric ward of XXXXX. The individual left XXXXX in September 1992 and stopped seeing Dr. XXXXX shortly thereafter. Tr. at 257-259; DOE Exhibits AB, AC.

On December 7, 1993, XXXXX, a Personnel Security Analyst, conducted the previously mentioned Personnel Security Interview with the individual. At this interview, Mr. XXXXX questioned the individual in detail about her mental condition and related treatment. DOE Exhibit E. After the interview, the individual became despondent about her future employment at XXXXX and attempted suicide that evening by means of a drug overdose. She was taken to XXXXX for recovery. DOE Exhibit AF; Tr. at 69. On December 12, 1993, the individual was transferred to XXXXX, a drug rehabilitation unit, operated by XXXXX, in XXXXXXXXXXXX. DOE Exhibit AE; Tr. at 247. While there, the individual came under the care of Dr. XXXXX. See Individual's Exhibit 1. On January 12, 1994, the individual was released from XXXXX. DOE Exhibit AE. Following the issuance of the DOE psychiatrist's evaluation of the individual in March 1994, the individual's level "Q" access authorization was suspended on July 27, 1994, pending this administrative hearing.

Finally, in August 1994, the individual was again hospitalized for psychiatric treatment. This hospital visit lasted for approximately 10 days. Tr. at 263. In November 1994, Dr. XXXXX, whom the individual had been in therapy with since January 1994, died unexpectedly. As a result of Dr. XXXXX death, the individual began therapy with XXXXX, MD, which continues up to the present. Tr. at 55.

IV. Analysis

It is undisputed that the individual suffers from recurrent major depressive disorder. Because of this fact, the DOE/XXXXX Personnel Security Division has raised questions regarding the individual's judgment and reliability. However as the Part 710 regulations dictate, once an individual's mental condition is questioned, the Hearing Officer must undertake a careful review of all of the surrounding facts and circumstances. In fact, the applicable DOE regulations require the Hearing Officer to make a "common-sense judgment . . . after consideration of all the relevant information." 10 C.F.R. § 710.7(a). Without this careful review, this process would be transformed into a simple matter of obtaining a medical diagnosis which calls into question the individual's judgment or reliability. Thus, pursuant to the regulations, I must consider all information that is "favorable or unfavorable" to the individual and ultimately bearing on "whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual's mental condition; the circumstances surrounding her mental condition; the frequency and recency of her depressive episodes; her potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of her depressive episodes; and any other relevant and material factors. 10 C.F.R. § 710.7(c). It is the totality of these facts and circumstances that will shed light on whether the individual could fail to perform her security responsibilities adequately. Although it is impossible to predict with absolute certainty an individual's future behavior, as the Hearing Officer, I am directed to make a predictive assessment. Thus, it is incumbent upon the individual to demonstrate to me that her medical condition will not compromise national security concerns. After careful consideration of all of these factors, I find that restoration of the individual's access authorization will not endanger the common defense and security and is clearly consistent with the national interest.

A. The Information Cited As Creating a Substantial Doubt Regarding the Individual's Eligibility for Access Authorization

The DOE/XXXXX contends that, pursuant to 10 C.F.R. § 710.8(h), the individual has an illness or mental condition of a nature which in the opinion of a board-certified psychiatrist causes, or may cause, a significant defect in her judgment or reliability. Specifically, Dr. XXXXX, the board-certified psychiatrist who conducted the individual's March 29, 1994 psychiatric evaluation for the DOE, diagnosed the individual as having recurrent major depression. Tr. at 122; DOE Exhibits H and K. Furthermore, Dr. XXXXX testified that an episode of major depression is accompanied by several symptoms which can cause defects in judgment or reliability. These symptoms include a depressed mood, distortions in the way a person thinks about herself, lack of energy, and an inability to concentrate. Tr. at 122. The DOE/XXXXX argues that the 50 percent or higher likelihood that the individual will experience additional depressive episodes and the attendant symptoms will make it very difficult for her to fulfill her security obligations, and thus her clearance should not be restored. Tr. at 133.<3>

B. The Individual's Mental Condition

The individual states that she has had four episodes of major depression which coincide with traumatic events in her personal life. Following the last of these episodes, the individual confirms that she was so distraught after her personnel security interview about the prospect of losing her job, that she attempted suicide. Tr. at 252-264.<4> The significance of these events and the likelihood that the individual will experience a significant defect in judgment or reliability are issues that the regulations dictate must be analyzed and addressed by mental health professionals. To that end, Dr. XXXXX, a board-certified psychiatrist, performed the DOE's psychiatric assessment of the individual. In an April 1, 1994 written evaluation, based on a one-hour March 29 interview and a review of the individual's medical and personnel records, Dr. XXXX reported on the individual's family history, complete psychiatric history (including all of her depressive episodes and suicide attempt), past medical history, his interview, and finally his diagnostic impression. Dr. XXXXX favorable evaluation states:

[The individual] . . . seems honest, even about issues that might put her in a bad light, and she seems loyal to her company and to the country. . . . At the presnt [sic] time, I do not see more than minimal signs of depressive illness and feel that she is in remission from her depression and that there is no significant defect in her judgment or reliability. . . . I see no reason to think that she has defective judgment or that she is not reliable and I feel that she is totally loyal to her company and to the country.

DOE Exhibit H at 4.

However, Dr. XXXXX favorable evaluation did not end the review of the individual's access authorization. On April 19, 1994, less than three weeks later, the Personnel Security Analyst who handled the individual's security review, XXXXX, contacted Dr. XXXXX Assistant, XXXXX, "in an effort to clarify the psychiatric evaluation." DOE Exhibit I. In the "MEMO TO THE FILE" documenting his conversation with Ms. XXXXX, Mr. XXXXX wrote:

The emphasis on the "may cause" aspect of criteria . . . [§ 710.8(h)] was stressed. . . . This topic was further expanded by discussing Dr. XXXXX [sic] comments about the Subject's suicide attempt in 12/93 . . . I explained that a reasonable person would not normally become suicidal after interacting with representatives of the DOE Personnel Security Program. Accordingly, we would like to have Dr. XXXXX review his evaluation with attention being given to the CFR criteria, and the Subejct's [sic] judgement or reliability. I emphasized that I was not asking the Doctor to change his diagnosis, rather that he re-evaluate his diagnosis and prognosis.

DOE Exhibit I.

Ten days later, Mr. XXXXX reached Dr. XXXXX by telephone to discuss the April 1, 1994 psychiatric evaluation. In that conversation, Mr. XXXXX brought to Dr. XXXXX attention several allegations regarding the individual's behavior and Dr. XXXXX complied with Mr. XXXXX request to "re-evaluate" the individual. This conversation is documented in DOE Exhibit K, entitled, "SYNOPSIS OF A CONVERSATION WITH DR. XXXXX ON APRIL 29, 1994 AT XXXXX." Dr. XXXXX stated during his testimony at the hearing that Mr. XXXXX wrote this "SYNOPSIS" and sent it to Dr. XXXXX for his concurrence and signature. After reviewing the "SYNOPSIS," Dr. XXXXX signed and dated the document and mailed it back to Mr. Jackson. Tr. at 118. The "SYNOPSIS" is reproduced below:

During our conversation the following items and potential result were discussed:

[The individual] . . . has not reported mental health counseling and several suicide attempts to the Department of Energy (DOE), despite being specifically queried about these events in a Personnel Security Interview (PSI) in December 1993.

[The individual] . . . has specifically requested that several mental health care providers not inform her employer or the DOE about her condition, or the events which have occurred as a result of her condition (i.e. suicide attempts).

[The individual's]. . . diagnosed Axis I condition of Major Depression, Recurrent, has a fifty percent likelihood of returning, and causing a significant defect in her judgement or reliability.

The information contained in [the individual's] . . . personnel security file, coupled with your evaluation, indicates that she has, or has had, a significant defect in her judgement or reliability.

[The individual]. . . has been making beneficial progress in the treatment of her diagnosed condition. Accordingly, recontacting [the individual]. . . for clarifying information (i.e. a PSI) would not cause her to respond in a self destructive, or otherwise negative manner.

DOE Exhibit K.

At the hearing, Dr. XXXXX was asked to explain the apparent contradiction between his April 1, 1994 diagnosis and his April 29, 1994 diagnosis. Dr. XXXXX did not disavow his first evaluation where he stated that he felt "that there is no defect in her judgment or reliability." DOE Exhibit H at 4. Instead, he explained that the latter diagnosis "was sort of an addendum to what I said before." Tr. at 132. He stated that "[t]he first opinion indicates that at the slice of time when I saw her in the interview . . . I did not pick up any . . . evidence . . . that there was a defect in judgment . . ." Tr. at 164. Dr. XXXXX explained that in reaching his April 29, 1994 diagnosis, he did not meet the individual again, but was responding to a different question, not posed to him when he wrote his first evaluation. His second diagnosis, he said, was an answer to the Personnel Security Analyst's hypothetical question, "if this is a person in a major depressive episode, is there likely to be a deficiency in her function, and the answer to that is yes." Tr. at 164. On balance I find Dr. XXXXX explanation for his "amended" diagnosis to be confusing, contradictory, and ultimately unconvincing. Fortunately, I am also able to consider the opinion of the individual's current psychiatrist, Dr. XXXXX.<5>

Dr. XXXXX assessment of the individual is based on his approximately twelve visits with the individual, her prior medical records and additionally, Dr. XXXXX records. At the hearing, Dr. XXXXX testified to several important facts. First, he stated that the individual's type of depression, recurrent major depression without any symptoms of temporary psychotic states, does not affect memory, the ability to calculate, or rationality, and that her condition characteristically does not cause a defect in judgment. Tr. at 60, 85.<6> While Dr. XXXXX acknowledged that "there would be some areas of judgment that could be impaired," it is his opinion that the areas where the individual's judgment might become impaired would not increase the likelihood of her being a security risk. Tr. at 85. In fact, Dr. XXXXX stated that if the individual were to experience another depressive episode, her condition would result in her exacting greater care and having greater concern regarding judgments and decisions. Tr. at 61, 85. If anything, Dr. XXXXX contends that the individual would tend to doubt herself, question herself, and be very careful to make sure that any decision she made was a correct decision. Tr. at 61. Moreover, Dr. XXXXX believes the individual to be a "very concerned, conscientious, diligent person who is always extremely careful." Tr. at 63. <7>

I find Dr. XXXXX testimony in this case more convincing than Dr. XXXXX testimony for two reasons. First, Dr. XXXXX diagnosis is not based on a hypothetical question posed in only general terms by a security analyst, but is based on repeated visits, a significantly longer clinical evaluation of the individual and actual consideration directed to her specific personality traits. As mentioned above, as of the date of the hearing, Dr. XXXXX had twelve therapy sessions with the individual versus Dr. XXXXX one-hour, one-time interview with the individual. There is no doubt in my mind that Dr. XXXXX has had a better opportunity to observe and evaluate the individual and her condition. Dr. XXXXX also provided details of the individual's specific personality traits, which are significant because Dr. XXXXX admitted that his diagnosis was a general diagnosis that applies to any individual with recurrent major depression.<8> Second, although Dr. XXXXX has provided an explanation for his "amended" diagnosis, the fact remains that he was prompted to "re-evaluate" the individual at the urging of the Personnel Security Analyst handling the case who also put into writing for his signature an "amended" diagnosis. Although I acknowledge the right of a doctor to change his diagnosis under the proper circumstances, e.g. new facts come to light or mistaken assumptions underlie an earlier diagnosis, these circumstances are not present here. I question the reasons why Dr. XXXXX would sign a document, written by a non-medical person, who clearly was dissatisfied with the original psychiatric evaluation. By all appearances, I can only conclude that the Personnel Security Analyst influenced Dr. XXXXX to alter his original diagnosis. For these reasons, I find that Dr. XXXXX testimony has predictive value regarding Ms. XXXXX behavior while Dr. XXXXX testimony does not.

C. Other Possible Security Concerns

It is undisputed that the individual has been prescribed several medications through the years to treat her depression. In fact, the record indicates that Dr. XXXXX, the physician at XXXXX in XXXXX who treated the individual following her suicide attempt, ventured a diagnosis of "polysubstance dependence." However, this diagnosis is inconsistent with another diagnosis in the record. For example, Dr. XXXXX, who began to treat the individual in January 1994, wrote in a September 1, 1994 letter to Mr. XXXXX regarding Dr. XXXXX diagnosis:

It was my assessment at that time [January 1994] that she was not suffering from an addictive disorder but from a Depressive State.

Individual's Exhibit 1.

Taking into account this diagnostic uncertainty, I cannot conclude that the individual suffered from "polysubstance dependence" in December 1993. While the individual's use of medications and their effect on her judgment and reliability provide cause for concern, Dr. XXXXX testified that the individual's current medication is not addictive and will not affect a person's normal judgment or cause a person to lack cognitive reasoning. Tr. at 59, 67, 93. This testimony has not been refuted and was convincing to me. There is also no additional evidence in the individual's medical history to show that at any other time she suffered from "polysubstance dependence."<9> For these reasons, I reject the allegation that the individual may have suffered or suffers from a dependency problem.

Finally, the April 29, 1994 "SYNOPSIS" of the conversation between Dr. XXXXX and Mr .XXXXX at DOE Exhibit K raises two additional concerns, not included in DOE/XXXXX's notification letter to the individual.<10> These concerns regard the individual's alleged failure to report mental health counseling and several suicide attempts to the DOE. I have reviewed the transcript of the December 1993 Personnel Security Interview and there is no doubt that the individual disclosed to Mr. XXXXX the two times that she sought counseling and her August 1992 psychiatric visit. Exhibit E at 21-23, 70-72. Furthermore, in her response to an April 22, 1988 "Personnel Security Questionnaire," the individual described her psychologist visits in an answer to question twelve, regarding medical treatment for a mental disorder. Individual's Exhibit 10 at 33. Thus the allegation that the individual failed to report counseling is unsubstantiated.

Moreover, contrary to the "SYNOPSIS," there is no evidence in the individual's voluminous medical records to indicate that she attempted suicide more than once. Although there is nothing in the record to indicate whether or not the individual immediately notified XXXXX management or the DOE of her suicide attempt, there is no evidence of concealment.<11> There is no doubt that she reported it to Dr. XXXXX in her March 29, 1994 interview. Exhibit H at 2; Tr. at 142, 273-274. Given the individual's history of openness to her employer regarding her condition, I have no reason to believe that the individual failed to tell XXXXX management or the DOE about her suicide attempt. Furthermore, I must also consider the fact that these two allegations in the "SYNOPSIS" are uncorroborated and, in some cases, contrary to verifiable facts in the record. For these reasons, I do not believe them and accord them no weight whatsoever.

D. Additional Factors

At the hearing and from the record I learned several important and enlightening facts about the individual's personality and work performance which bear mentioning. First, the individual's current and former supervisors and her peers at XXXXX have consistently viewed her as a "conscientious," "top notch," "good" employee who is "particularly thorough," "diligent," and a "perfectionist" when it comes to security matters. Tr. at 191-192, 206-207, 213-214, 225, 232, 243-245. Individual's Exhibit 10 at 38, 40. Although all were aware of the individual's mental condition, the witnesses did not mention that it had ever affected her job performance. Furthermore, the administrative record indicates that in more than XXXXX years at XXXXX, the individual has not had any security infractions. Tr. at 219-220, 271. Moreover, interviews in the individual's personnel security file confirm that her co-workers and supervisors have repeatedly recommended her for a "position of trust involving the national interest." Individual's Exhibit 10 at 38, 40, 41, 42, 44, 45. The individual's personnel security file also contains documentation of credit checks and interviews with people who know the individual which indicate that she is financially responsible and lives within her means. Individual's Exhibit 10. Finally, six former co-workers or former supervisors who testified at the individual's hearing, all with knowledge of her depression illness, indicated that they do not believe the individual is a security risk to her country. Tr. at 192, 207, 214, 225, 233, 243-244.

The record also indicates that the individual has not only been very forthright with her employer regarding her mental condition, but that she has also never hesitated to seek professional help when she has needed it. In essence, the administrative record demonstrates that the individual has done everything that the regulations and her employer have required or wanted her to do. The individual has broken no law. Instead, she has recognized a personal problem, sought competent help for it, received treatment, reported her condition, and continued at all times to perform her job well.<12> Her efforts at rehabilitation should be commended, not condemned.<13>

V. Conclusion

While the individual's depressive episodes and her attempted suicide have caused serious questions to be raised concerning the risk that she might compromise national security, I find that her type of depression, her psychiatric profile, her work record, her openness, and her efforts at rehabilitation all indicate that restoring her access authorization will not endanger the common defense and security and would be clearly consistent with the national interest. Specifically, should she experience a recurrence of depression, I am convinced that it will not affect her judgment or reliability and there is no indication from her work record that it ever has. In fact her psychiatric profile indicates that the individual might actually show less potential to be pressured, coerced, or exploited while under duress. Tr. at 61, 85. For these reasons, I find that the individual's access authorization should be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the reviewing official to focus. This statement must be filed within 15 calendar days

after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

George B. Breznay

Hearing Officer

Office of Hearings and Appeals

<1>/ A level "Q" 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, security clearance, or "Q" clearance.

<2>/ I conducted a prehearing tele-conference with the parties on January 11, 1995. At that time, the parties agreed that all of the documentary material they had exchanged would be stipulated into evidence.

<3>/ Recurrent major depression once-diagnosed after a single episode has a 50 percent chance of recurrence. In cases involving individuals who have had more than two episodes, the likelihood of the individual experiencing additional episodes increases to around 80 or 90 percent. Tr. at 121. See also, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, 341-342 (1994).

The question of whether the individual was at one time polysubstance dependent has also been raised with regard to its effect on her judgment and reliability. Specifically, allegation 4A in the Notification Letter Attachment, "Information Creating a Substantial Doubt Regarding Eligibility For Access Authorization" referred to a January 13, 1994 medical record entry from a Dr. XXXXX which states that the individual was treated for polysubstance dependence. DOE Exhibit A. The DOE/XXXXX has also raised questions, through the submission of its Exhibits, that the individual may have failed to report all of the facts regarding her mental condition to the DOE. Although these charges were not

specifically alleged in the official notification to the individual, I will address them because they are relevant to the individual's judgment and reliability.

<4>/ The individual has been hospitalized on three occasions. The first hospitalization occurred in August 1992 after the individual suffered from what she and a few of her doctors believe was a toxic reaction to a combination of several medications prescribed by her psychiatrist. These medications produced hallucinations. Tr. at 258. Her second hospitalization occurred in December 1993 after the attempted suicide. Her third hospitalization occurred in August 1994 after she experienced a reactivation of depression and another mild toxic reaction to one of her medications.

<5>/ Dr. XXXXX is a XXXXX citizen. Although Dr. XXXXX is not board-certified in psychiatry in the United States, the American Board of Psychiatry and Neurology accepts his XXXXX psychiatric certifications as equivalent to board certification in the United States. Tr. at 51. Individual's Exhibit 9.

As of the date of the hearing, Dr. XXXXX had treated the individual approximately twelve times since November 1994. The individual had been treated by Dr. XXXXX clinic partner, Dr. XXXXX, from January 1994 until Dr. XXXXX passed away in November 1994. Tr. at 57.

<6>/ Dr. XXXXX testified that there are unusual cases where episodes of major depression are accompanied by psychotic features, including hallucinations. However, Dr. XXXXX testified, the individual has not suffered from this unusual form. Tr. at 85-86. See also infra note 9 at p. 10.

<7>/ Dr. XXXXX also stated that after reviewing the individual's medical records, he believes that his diagnosis of the individual's mental condition is identical to both Dr. XXXXX

diagnosis and Dr. XXXXX diagnosis. Tr. at 64.

<8>/ Dr. XXXXX also acknowledged that in any case where someone suffers from depression, the effect on the individual's mental function depends on the depth of the depression and other personality factors, such as the ability to handle stress. Tr. at 133. I find that this statement lends more credibility to Dr. XXXXX clinical diagnosis and diminishes Dr. XXXXX hypothetical diagnosis.

<9>/ The individual and several of her doctors state that she may have suffered from an "allergic reaction" to several prescribed medications in August 1992. Tr. at 69, 97-98, 258; see also, Individual's Exhibit 4 (Dr. XXXXX speculated that her hallucinations might require a change in medication). This alleged "allergic reaction" resulted in confusion, a rash, and hallucinations that bugs were all over her body. Tr. at 67-68, Individual's Exhibit 4. There is no contrary evidence to suggest that the individual's hallucinations, rash and confusion were due to anything but her prescribed medication. Accordingly, I must accept this explanation for her hallucinations.

<10>/ Since the individual was not formally notified of these allegations pursuant to 10 C.F.R. § 710.21(b)(2), and DOE/XXXXX did not address these issues at the hearing, I will review them not as an independent reason to deny a security clearance, but only to determine whether or not they provide any support for other allegations.

<11>/ One witness alleged that the individual's managers at XXXXX were aware of the individual's suicide attempt, but did not immediately report it to the DOE. Tr. at 193-194.

<12>/ In fact, both of the psychiatric experts who testified at the hearing have confirmed that the individual is "well-informed" and has "considerable insight" into the nature of her condition. Tr. at 71; Exhibit H at 3.

<13>/ Dr. XXXXX testified at the hearing that, statistically speaking, three to five percent of XXXXX workers currently suffer from recurrent major depression. Tr. at 73-74. Moreover, the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders supports this estimate. The Manual states, "[t]he point prevalence of Major Depressive Disorder in adults in community samples has varied from 5% to 9% for women and from 2% to 3% for men." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, 341 (1994). Furthermore, the manual indicates that these prevalence rates appear to be unrelated to ethnicity, education, income, or marital status. Id. Although not a consideration in my findings, I feel that to permanently revoke the individual's clearance would discourage others who may be suffering from a similar condition from seeking help and from reporting their condition to the DOE.