Case No. VSO-0082, 25 DOE ¶ 82,800 (H.O. Gray Apr. 22, 1996)

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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 Hearing

Date of Filing: January 29, 1996

Case Number: VSO-0082

Pursuant to 10 C.F.R. Part 710, XXXXX (the Individual) requested a hearing on the denial of his application for access authorization. The XXXXX Office (XXXXX) of the Department of Energy (DOE) denied the Individual's application for access authorization based on derogatory information concerning the Individual's mental condition. After considering the evidence in view of the relevant regulations, it is my opinion that the Individual's application for access authorization should be denied.

BACKGROUND

The Individual applied for access authorization as a requirement of employment with a contractor of XXXXX. On October 4, 1995, the manager of XXXXX issued a Notification Letter to the Individual. The Notification Letter informed the Individual that his application for access authorization was denied because of derogatory information in the possession of the DOE. The derogatory information indicated that the Individual has:

an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.

10 C.F.R. § 710.8(h) (Criterion H). The basis for the derogatory information listed in the Notification Letter is the finding by a licensed physician that the Individual suffers from recurrent major depressive disorder, bipolar disorder, and mixed type personality disorder.<1>

On October 16, 1995, the Individual submitted a request for a hearing on his eligibility for access authorization. The Office of Hearings and Appeals received the request on January 29, 1996.

The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXX. At the hearing, the Individual represented himself. He presented the testimony of a clinical social worker and his treating psychiatrist, and testified on his own behalf. The DOE presented the testimony of a consulting psychiatrist and a personnel security specialist.

FINDINGS OF FACT

The Individual is a XXXXX-year-old XXXXXXXXXXXX worker. He has worked for contractors of XXXXX, and held access authorization, off and on for more than XXXXX years.<2>

The Individual applied for a position with a contractor of XXXXX in February 1995. As part of the application process, he completed a Questionnaire for Sensitive Positions, in which he disclosed that he suffered from bipolar disorder.<3> As a result of this disclosure, the Individual was referred to the DOE consulting psychiatrist. The consulting psychiatrist performed an examination of the Individual lasting about two and one half hours, including the administration of two psychological tests.<4> The consulting psychiatrist concluded that the Individual has a mental condition that may cause a significant defect in judgment or reliability.<5>.Tr. at 11-12.<6> The consulting psychiatrist's diagnosis of the Individual's condition was major depressive disorder, bipolar disorder (possibly cyclothymia), and mixed type personality disorder.<7>

Bipolar disorder is an illness characterized by rapid changes in mood.<8> The disorder appears to be related to a chemical imbalance in the afflicted person's central nervous system.<9> It can require lifelong treatment.<10>

The DOE consulting psychiatrist and the Individual's treating psychiatrist agree in general on the diagnosis of the Individual's major depressive and bipolar disorders.<11> There is some uncertainty on the part of both psychiatrists as to whether the Individual's mood disorder should be considered cyclothymia, a separate disorder from bipolar disorder. The treating psychiatrist, however, believes that the differences between the two conditions are slight and the problems and treatments are similar.<12>

The consulting psychiatrist and the treating psychiatrist disagree on the issue of whether the Individual also has the mixed type personality disorder.<13> The treating psychiatrist acknowledged, however, that the Individual has exhibited behavior that looks like personality disorder.<14> The testimony of both psychiatrists established that the behavioral manifestations of the three mental conditions are similar, and distinctions among them are subtle.<15> I will refer to them collectively as "bipolar disorder."

The Individual describes his bipolar disorder as follows: "You're extremely happy or extremely depressed. It only takes me a couple minutes to go from one extreme to the other."<16> He observes that there were times his mood would "go bad or ugly," and "Sometimes it didn't take anything.... Most people would get upset. I would get angry. When most people would get angry, I would get ballistic...."<17> As seen in the incidents described below, and confirmed by his social worker, his depressed phases are characterized by withdrawal.<18> Despite the characterization of himself as, at times, "ballistic," the Individual denies that he ever committed an act of physical violence against someone because of his bipolar disorder.<19>

Before the Individual was diagnosed with bipolar disorder, he was hospitalized in a behavioral health center in June and December 1994. The Individual's conduct before each hospitalization provides examples of how he may act when not taking the medication for bipolar disorder. The June hospitalization occurred shortly after the Individual discovered that his wife had been unfaithful to him.<20> In a state of emotional shock, he walked out of his house and along a highway for a distance of about fourteen miles. According to the Individual, the temperature that day was approximately 107 degrees. Consequently, he became severely dehydrated.<21> His wife found him and drove him to a behavioral health center, where he was treated for dehydration and received mental health counseling.<22> He was not diagnosed at that time as having bipolar disorder.

The Individual's hospitalization in December was brought about by his despondence over being unemployed. Initially, he describes his behavior as "sitting home basically doing nothing ... playing on the computer all day.... and [getting] more distant and more distant, or more despondent."<23> Eventually, according to his social worker, he began to experience suicidal thoughts.<24> His wife became concerned when he removed a gun from a safe.<25> She took him to the behavioral health center, where he remained for eight days.<26> He received counseling and was placed under the care of his current treating psychiatrist, who ultimately diagnosed his bipolar disorder.

At present, the Individual is taking the drugs Tegretol and Zoloft for the bipolar disorder.<27> The Individual's treating psychiatrist adjusts the dosage of the medication each time the Individual sees him.<28>

In his prognosis for the Individual, the consulting psychiatrist believes that the Individual could relapse if he were to experience feelings of rejection, difficulties in his marriage, job insecurity, or if he were to become depressed for any reason. He noted, however, that the Individual's chances of relapsing are less as long as he stays on his medication.<29>

The prognosis given by the treating psychiatrist is more cautiously worded, but also recognizes that people with bipolar disorder clearly remain at risk for mood instability problems.<30> The treating psychiatrist stated that the Individual's mood fluctuations are less severe than before he began treatment, but continue to occur.<31> He also reported observing defects in the Individual's judgment when the Individual was experiencing very active mood instability.<32>

The treating psychiatrist thought that the Individual had been generally compliant in taking his medication, but noted that it is usual for patients with bipolar disorder to wish to discontinue their medication.<33> He thought that, since the Individual stopped taking the medication once, there is a distinct possibility he could stop again. <34> He explained that if the Individual stopped taking his medication, he could experience a reduced grasp of reality, a decreased ability to follow rules and regulations, and an impaired sense of right and wrong.<35>

The social worker testified that, in November or December 1995, the Individual became frustrated and stopped taking his medication for several weeks.<36> The social worker added that the Individual had expressed a desire to stop taking the medication several times.<37>

ANALYSIS

It is undisputed that the Individual has experienced a major depressive disorder and a mood disorder, which is either bipolar disorder or cyclothymia. It is also undisputed that the Individual has exhibited patterns of behavior consistent with the mixed type personality disorder. I therefore find that he suffers from the three mental conditions listed in the Notification Letter: major depressive disorder, recurrent, bipolar disorder (possibly cyclothymia), and mixed type personality disorder.

For a person with a mental, emotional, or personality disorder, there are two security concerns. The first is that the stigma associated with mental illness may lead the Individual to conceal his condition, rendering him susceptible to blackmail or exploitation. The second is that the condition may cause a defect in his judgment or reliability, which may degrade his ability or willingness to follow security procedures and regulations. See Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755 (1995), aff'd 25 DOE ¶ 83,002 (1995) (Oak Ridge); Personnel Security Hearing, Case No. VSO-0032, 25 DOE ¶ 82,765 (1995), aff'd 25 DOE ¶ 83,004 (1995); Personnel Security Hearing, Case No. VSO-0073, 25 DOE ¶ 82,794 (1996).

I find no basis to believe that the Individual would be subject to blackmail or coercion. He does not express any sense of shame or stigmatization about his bipolar disorder. He describes the condition as a "chemical imbalance in the brain, and considers it similar to high blood pressure or diabetes, in that it is a physical condition requiring long-term medication.<38> The Individual openly takes his medication at work in the presence of his coworkers.<39>

I do find, however, that the Individual's bipolar disorder causes a significant defect in his judgment and reliability. Both psychiatrists testified to the detrimental effect that bipolar disorder has on afflicted person's judgment and reliability. Examples of this detrimental effect are shown in the Individual's lack of sound judgment preceding his hospital stays in June and December 1994. In June, he continued walking in extreme heat until his physical health was impaired. In December, he reacted to financial pressures by withdrawal and even considered suicide to the point of removing a gun from a safe. In the context of the Individual working with or around classified material, the consequences of such irrational behavior could be extremely serious.

In considering the Individual's eligibility for access authorization, the regulations provide that I am to consider factors including the absence or presence of rehabilitation or reformation and other pertinent behavioral changes, and the likelihood of continuation or recurrence. 10 C.F.R. § 710.7(c).

The Individual claims that the medication he is taking has produced a behavioral change that mitigates concerns about his judgment and reliability. It is true that the psychiatric testimony in this case suggests that the Individual's bipolar disorder is controlled while he is on the medication. I believe, however, that the controlling factor in this case is the risk of recurrence of irrational behavior. This is a particularly high risk if the Individual stops taking his medication. In fact, both the treating psychiatrist and the social worker indicated that many persons with bipolar disorder decide at some time to stop taking their medication.

The Individual stated in June 1995 that he intended to comply with the program of medication.<40> Nevertheless, six months later, he stopped taking the medication for several weeks. Based on the expert testimony in this case, and the Individual's own past behavior, I am not convinced that he will continue to take his medication. On the contrary, I believe it is a distinct possibility that he may again stop taking his medication and experience impaired judgment and reliability due to the bipolar disorder. Cf. Personnel Security Hearing, 25 DOE ¶ 82,755 at 85,541. I find, therefore, that the Individual has failed to mitigate the security concerns raised by Criterion H.

CONCLUSION

The ultimate question in a case under 10 C.F.R. Part 710 is 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). The testimony of both psychiatrists has clearly established that the Individual's bipolar disorder may cause a significant defect in judgment or reliability. The Individual has not mitigated the security concerns raised by his mental condition. Although the Individual has at present controlled his condition with medication, the record shows that there is a significant risk of recurrence of symptoms.

In view of the criteria set forth in 10 C.F.R. Part 710, and the evidence in the record, I believe that valid and significant derogatory information has been established under 10 C.F.R. § 710.8(h). The derogatory information casts doubt about whether granting the Individual access authorization would not endanger the common defense and would be clearly consistent with the national interest. It is therefore my opinion that access authorization should not be granted to the Individual.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

<1>/ Notification Letter (Amended), dated February 9, 1996.

<2>/ Exhibit 1, Questionnaire for Sensitive Positions, dated February 6, 1995.

<3>/ Ibid.

<4>/ Hearing Transcript (Tr.) at 15.

<5>/ Hearing Exhibit 4, Report of Consulting Psychiatrist, at 5 (emphasis in original); Tr. at 49. The Individual pointed out that the consulting psychiatrist is not a board-certified psychiatrist. The Individual questioned whether he was therefore qualified to make the diagnosis under Criterion H. I note, however, that Criterion H requires that the diagnosis be made by "a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist" (emphasis added). The consulting psychiatrist is a licensed physician and board-eligible psychiatrist. I find him qualified to make the diagnosis under Criterion H.

<7>/ Ibid.

<8>/ Tr. at 72.

<9>/ Tr. at 38, 80.

<10>/ Tr. at 45-46.

<11>/ Tr. at 76.

<12>/ Tr. at 72-74.

<13>/ Tr. at 43, 75-76.

<14>/ Tr. at 76.

<15>/ Tr. at 38, 45, 59-60, 76,84.

<16>/ Personnel Security Interview (PSI) dated June 15, 1995, at 11.

<17>/ PSI at 12.

<18>/ PSI at 18; Tr. at 33-34.

<19>/ PSI at 12, 27, 30-31, 33; Tr. at 33-34.

<20>/ PSI at 25.

<21>/ PSI at 14.

<22>/ PSI at 16.

<23>/ PSI at 18.

<24>/ PSI at 28; Tr. at 32, 72.

<25>/ PSI at 28.

<26>/ Hearing Exhibit 1.

<27>/ Hearing Exhibit 1. He formerly took Mellaril, but his treating psychiatrist has discontinued its use.

<28>/ PSI at 20.

<29>/ Tr. at 50.

<30>/ Tr. at 83.

<31>/ Tr. at 77-78.

<32>/ Tr. at 79.

<33>/ Tr. at 27.

<34>/ Tr. at 78-79.

<35>/ Tr. at 80.

<36>/ Tr. at 89.

<37>/ Tr. at 27.

<38>/ Hearing Exhibit 1; PSI at 21.

<39>/ PSI at 30.

<40>/ PSI at 21.