Case No. VSO-0115, 26 DOE ¶ 82,771 (H.O. Gray)

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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.

March 6, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 26, 1996

Case Number: VSO-0115

This Opinion addresses the eligibility of XXXXXXXXX (the Individual) for access authorization. The regulations governing the Individual's eligibility are found at 10 C.F.R., Part 710.

The Individual was informed in a Notification Letter that her access authorization was suspended because of two security concerns that created a substantial doubt about her continued eligibility for access authorization. The security concerns are:

(1) That she 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," as provided in 10 C.F.R. § 710.8(h) (Criterion H).

(2) That she has "engaged in … unusual conduct or is subject to … circumstances which tend to show that [she] is not honest, reliable, or trustworthy; or which furnishes reason to believe that [she] may be subject to pressure, coercion, exploitation, or duress which may cause [her] to act contrary to the best interests of the national security," as provided in 10 C.F.R. § 710.8(l) (Criterion L.)

After receiving the Notification Letter, the Individual requested a hearing to bring forth evidence to resolve the doubts expressed in the Notification Letter.

At the hearing, the Department presented the testimony of a consulting psychiatrist and a personnel security specialist. The Individual presented the testimony of the three mental health professionals who have been treating her -- a psychiatrist, a licensed clinical psychologist, and a social worker -- and nine coworkers. Based on the evidence presented at the hearing, and in the case file, it is my opinion that the Individual has not resolved the security concerns raised in the Notification Letter. I therefore believe that her access authorization should not be restored.

Factual Background

For the most part, the facts in this case are not in dispute. The Individual is a mature woman who has been married for thirteen years.(1) Approximately six or seven years before the hearing, the Individual was diagnosed as having a chronic depressive condition.(2) She describes the symptoms of the condition as extreme fatigue, loss of interest in activities, and isolation from other people.(3) She began a course of antidepressant medication prescribed by her family physician.(4) She also began attending counseling sessions. The sessions apparently focused more on her marital and family problems than on her depression.(5)

Approximately a year and a half before the hearing, the Individual began an affair with a married coworker.(6) She tried repeatedly to break off the affair, but returned to him each time he asked that they reconcile.(7) At one point, she sought advice from a married male who was an old friend, and had a one-night sexual liaison with him.(8)

Approximately eleven months before the hearing date, the Individual's lover made it clear to her that he would not leave his wife to marry her. The Individual felt devastated by this statement.(9) Shortly after the discussion, she attempted suicide by taking an overdose of prescription medications and drinking a bottle of wine. She was discovered the next morning, conscious but disoriented, by two friends who took her to the emergency room of a local hospital.(10)

After about one week in the hospital, she was released and returned to work. The personnel security branch at her site then interviewed her and reviewed her eligibility for access authorization. As a result of that review, the Notification Letter was issued.

Analysis

Criterion H - Mental illness or condition

A mental illness or condition that causes, or may cause, a defect in judgment or reliability is a security concern because the resulting defect in judgment or reliability could impair the Individual's ability or willingness to follow security procedures and regulations. Personnel Security Hearing, Case Number VSO-0082, 25 DOE ¶ 82,800 (1996).

The Individual's Mental Condition

At the hearing, the Individual's mental condition was discussed in detail by her treating psychiatrist, her treating licensed clinical psychologist, and her treating social worker. All three have been treating her since the suicide attempt. In addition, the Individual's mental condition was evaluated before the hearing by the Department's consulting psychiatrist. All four mental health professionals agree that the Individual has a mental disorder variously called "chronic depression," "depression neurosis" or "dysthymic disorder.(11) In addition, all agree that she had a separate mental disorder, a major depressive episode, connected with her suicide attempt. The Individual does not dispute these diagnoses.(12)

Security Concerns

The evidence in this case establishes not only that the Individual has dysthymic disorder and underwent a major depressive episode, but also that these disorders caused a significant defect in her judgment and reliability. The testimony of the Individual's psychiatrist supports the conclusion that both the affair and the suicide attempt were manifestations, in part, of an acute or crisis phase of her dysthymic disorder.(13) The treating psychiatrist also expressed the opinion that the Individual's depression caused her to exercise poor judgment.(14) The records of the treating social worker note that the Individual manifested poor judgment (mild) and poor impulse control (moderate) at the initial assessment, approximately two and one half weeks after the suicide attempt.(15) I find therefore that the Individual's mental disorders caused a defect in her judgment and reliability.

Likelihood of Recurrence

I consider the critical factor in this case to be the likelihood of recurrence of the acute phase of the Individual's mental disorders. 10 C.F.R. § 710.7(c). According to the Individual's treating psychiatrist, the Individual's dysthymic disorder is chronic and will probably require medication under a psychiatrist's supervision for the rest of the Individual's life.(16) As far as the Individual's present mental health after the suicide attempt, all the treating mental health professionals describe the Individual as currently functioning well, receiving appropriate therapy for her condition, and responding well to medication.(17)

In assessing the probability of recurrence of the Individual's acute mental disorder, however, I must look beyond her current behavior to the future. The consensus of opinion among the mental health professionals was that recurrence is highly unlikely if the Individual maintains her current program of therapy and medication. For example, the treating psychiatrist described the Individual's prognosis as good, and stated that, with a reasonable degree of medical certainty, an acute phase of depression would not recur if the Individual stayed in therapy and continued on her course of medication.(18) The treating clinical psychologist concurred with this opinion.(19)

It is important to note, however, that the Individual's favorable prognosis is predicated on her continuing with the present regimen of therapy and medication. According to the treating psychiatrist, if the Individual were to stop taking her medication, the probability of relapse of a major depression is as high as 90 percent.(20)

The testimony of the mental health professionals established that effective treatment for the Individual's condition requires a course of professional treatment over time. While the mental health professionals at the hearing did not specify a precise timetable for therapy necessary to minimize recurrence, all agreed that the intensive portion of therapy was not yet complete. When asked about the length of time necessary to establish successful rehabilitation and reformation for the Individual, the treating clinical psychologist said "I don't think it will be a short period of time.... I guess I would say a long period of time rather than a short period of time.... I think a year is very significant, but I don't think it's sufficient... Generally, two years does seem to be a fairly significant length of time.(21) The treating psychiatrist stated that "as [the Individual makes progress in her therapy she may not really need to be in individual therapy of this type forever.... It's usually more like a year duration, a year or two years duration.(22)

Since the suicide attempt, however, the Individual has less than a year of intensive therapy and medication at the current dosage. At this relatively early stage in the Individual's treatment, the possibility of her failing to follow the therapeutic regimen, with a consequent recurrence of an acute dysthymic condition or major depressive episode, cannot be ruled out. I therefore believe that she has not had even the minimal treatment, as recommended by the mental health professionals, to resolve concerns about a possible relapse of an acute phase of one of her mental disorders, with a consequent impairment of her judgment or reliability.

Criterion L - Honesty, Reliability, and Trustworthiness

The security concerns identified in the Notification Letter under Criterion L can be placed in three groups.

The first group concerns several statements the Individual made about protecting her access authorization. When her friends found her after the suicide attempt, she told them that she did not want to call an ambulance because security personnel would find out what she had done and revoke her access authorization.(23) In addition, she said during a personnel security interview that she had not wanted to attend too many therapy sessions before her suicide attempt, because she feared this would attract the attention of security personnel and place her access authorization in danger.(24) In the Notification Letter, these statements are used to charge that she was attempting to conceal her mental condition from security personnel, and is therefore untrustworthy.(25)

The other are two factors listed under Criterion L in the Notification Letter are her adulterous affairs and her suicide attempt.(26) The security concern arises from the fact that, although the affairs and suicide attempt went against deeply ingrained moral values, she was unable to resist the impulses.(27)

Moreover, the treating mental health professionals considered that the factors listed under Criterion L were inextricably connected with the Individual's mental disorder.(28) Consequently, I believe that the evaluation of the Criterion L factors would substantially depend on the evaluation of the Individual's mental disorder under Criterion H. Since I have found that the security concerns under Criterion H have not been resolved, I also find that the security concerns under Criterion L have not been resolved.

Conclusion

In a case under 10 C.F.R. Part 710, an individual has the burden of going forward with evidence to rebut, refute, explain, extenuate, or mitigate the allegations. The ultimate burden of persuasion rests on an individual to show that granting or restoring access authorization would not endanger the national defense and would be clearly consistent with the national interest. This standard implies a strong presumption against the granting or restoration of an individual's access authorization. Consequently, security determinations should err, if they must, on the side of denials. Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,751 at 85,527 (1995).

The Individual has failed to meet the burden of persuasion. While there is no evidence that the Individual has ever compromised national security, I must consider that, were the acute phase of her mental disorders to recur, she could not be relied upon to exercise discretion in security matters or follow security regulations. Moreover, although the Individual is heading in the right direction by participating conscientiously in a therapy program, her treating clinical psychologist acknowledges that mental health problems still exist.(29)

As the consulting psychiatrist pointed out, "[the Individual's] judgment and reliability ... [are] unpredictable.... When somebody decides to [attempt] suicide, as occurred with her, ... at that point they're losing all sense of value. [Her] whole attitude and value structure has gone.(30) I am concerned that the Individual could relapse into an acute phase of mental disorder, with a resulting collapse of her value structure and endangerment of the national security.

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 security concerns have been established under Criteria H and L. These concerns create substantial 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 the Individual's access authorization should not be restored.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: March 6, 1997

(1) Transcript of Hearing (Tr.) at 457.

(2) Personnel Security Interview (PSI) at 7; 8.

(3) PSI at 10.

(4) Tr. at 196.

(5) Exhibit 6, Records of Individual's mental health counselors, passim.

(6) PSI at 19; 24.

(7) PSI at 26; 27; Tr. at 485-86.

(8) PSI at 45; Tr. at 481.

(9) PSI at 25.

(10) PSI at 7.

(11)" Exhibit 1, report of Consulting Psychiatrist; Tr. at 27-28; 72-73; 77. Based on the following information, I conclude that the terms "depression neurosis" and "dysthymic disorder," as used in this case, refer to the same mental disorder. Dysthymic disorder is a term used in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., (DSM-IV). The diagnostic code for dysthymic disorder in DSM-IV is 300.4. The consulting psychiatrist used this same code, 300.4, to represent his diagnosis of depression neurosis, which is not found in DSM-IV. In addition, the Individual's treating psychiatrist testified that depression neurosis and dysthymic disorder are essentially the same. Tr. at 87.

(12) The Individual and the three mental health professionals who testified in her behalf do dispute an additional diagnosis made by the consulting psychiatrist - a diagnosis of "personality disorder, not otherwise specified." The consulting psychiatrist based his diagnosis on two standardized, computer-scored tests -- the Minnesota Multiphasic Personality Inventory (MMPI) and the Millon Clinical Multiaxial Inventory (MCMI). The reports of both tests include caveats that they must be evaluated in light of clinical data. See Personnel Security Hearing, Case No. VSO- 0021, 25 DOE ¶ 82,763 (1995). Moreover, a general diagnostic criterion for any personality disorder is that the pattern of inner experience or behavior in question must not be better accounted for as a manifestation or consequence of another mental disorder. DSM IV at 633. The DSM IV at 632 further cautions that "it may be particularly difficult (and not particularly useful) to distinguish Personality Disorders from those ... disorders (e.g. Dysthymic Disorder) that have an early onset and a chronic, relatively stable course" (emphasis added). The Individual's treating mental health professionals rejected a diagnosis of personality disorder on the basis that her behavior is better accounted for by her dysthymic disorder. Tr. at 81-83; 94; 122-28; 140-44. On the basis of their testimony, and the advice in DSM IV, I will analyze the security concerns under Criterion H as arising from dysthymic disorder and a major depressive episode, and not from a separate personality disorder.

(13) Tr. at 98; 103-04; 111; 142-43.

(14) Tr. at 121.

(15) Exhibit 2, records of treating social worker, at 1.

(16) Tr. at 105.

(17) Tr. at 117.

(18) Tr. at 80-81; 105; 133; 137-38.

(19) Tr. at 172.

(20) Tr. at 138.

(21)" Tr. at 172-73; see also Tr. at 198, where the treating psychologist agrees that a two-year time period would be a better time to evaluate a patient's recovery.

(22)" Tr. at 80. The consulting psychiatrist also recommended one to two years of therapy for the Individual, although he characterized her problem as a personality disorder. Tr. at 43.

(23) Tr. at 447; 509-10.

(24) PSI at 15; Tr. at 507.

(25) One aspect of unreliability or untrustworthiness would be the Individual's potential susceptibility to blackmail resulting from the stigma associated with mental disorders, or from her desire to conceal the affairs or suicide attempt. In this case, there is no reason to believe that the Individual would be subject to blackmail. She does not express any sense of shame or stigmatization about her dysthymic disorder. The facts of her mental illness, her suicide attempt, and her affairs are known to her friends and coworkers. See, e.g., Tr. at 240-41; 318-19; 321-22; 340; 346; 352; 357; 381-82; 396; 407-11. See also Tr. at 266; 289; PSI at 44.

(26) Considered in isolation, the Individual's adulterous affairs may not raise a security concern. Nevertheless, a pattern of incidents may lead to a valid security concern though none of the incidents would be significant by itself. Personnel Security Hearing, Case No. VSO-0096, 26 DOE ¶ 82,756 at 85,544 (1996). In this case, it is the pattern of irresponsible behavior by the Individual, including the affairs, the suicide attempt, and the reluctance to stay in therapy, that raises a security concern under Criterion L.

(27) PSI at 20; 41; 46.

(28) E.g. Tr. at 144; 284.

(29) Tr. at 105.

(30)" Tr. at 43-44.