Case No. VSO-0163, 26 DOE ¶ 82,799 (H.O. Lipton October 28, 1997)

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

October 28, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: June 25, 1997

Case Number: VSO-0163

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, a request for access authorization for this individual should be granted.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a detailed statement of the derogatory information. The DOE concern involves information that indicated that the individual has been or

is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent, or as suffering from alcohol abuse. 10 C.F.R. § 710.8(j) (hereinafter Criterion J). (2) The Notification Letter expressed a further security concern related to the individual’s guilty plea and conviction for felony possession of a controlled substance, amphetamines. The possession constituted a violation of the individual’s written commitment given to the DOE in 1993 to refrain from involvement with illegal drugs while employed by the DOE. According to the Notification Letter this constituted derogatory information under 10 C.F.R. §710.8(l)(hereinafter Criterion L).(3)

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual was represented by counsel. He testified on his own behalf, and presented testimony of two friends, and that of his addiction counselor (hereinafter referred to as the individual’s counselor). (4) The DOE Counsel presented the testimony of a security specialist and that of a DOE consultant psychiatrist (DOE psychiatrist).

II. Statement of Derogatory Information

As stated above, the areas of concern identified in the Notification Letter involve the individual’s use of alcohol, and violation of a commitment to refrain from involvement with illegal drugs. The letter also sets forth the events giving rise to these concerns.

With respect to the Criterion J concern, the Notification Letter sets forth three instances in which the individual was arrested for driving under the influence of alcohol (DUI). These occurred on March 24, 1995 (5), August 11, 1995, and April 19, 1996. The Notification Letter mentions a fourth incident, which took place in 1994, in which the individual admittedly drove while under the influence of alcohol, caused an accident and sustained personal injuries, but was not cited. The Notification Letter also refers to an evaluation by the DOE consultant psychiatrist, who diagnosed the individual as alcohol dependent and a habitual user of alcohol to excess.

With respect to the Criterion L concern, the Notification Letter points out that the individual had a positive drug screen for marijuana use in 1984, while employed at the DOE facility. The letter refers to the certification signed by the individual in 1993, in which he agreed to have no further involvement with illegal substances while holding a security clearance. The letter then cites an incident that took place in 1995, in which the individual pled guilty to felony possession of a controlled substance, amphetamines. The possession of amphetamines is a violation of that agreement with the DOE, and thereby constitutes derogatory information under Criterion L.

III. The Hearing

A. Alcohol Use (Criterion J)

At the hearing, the individual admitted that he formerly “abused” alcohol, but he believes that he will be able to avoid this problem in the future. Transcript of Hearing (hereinafter Tr.) at 123, 160. Two witnesses, who were personal friends of the individual and acquainted with him through the work environment, testified that he had significantly reduced his alcohol intake during the past year and that he is currently drinking at a very moderate level.

The individual’s counselor testified that when she originally evaluated the individual in April 1996, she found him to have a dependence on alcohol. Tr. at 19. However, she stated that “alcohol is not a problem for him at this time.” Tr. at 21. In her opinion, the individual is rehabilitated from alcohol dependence. Tr. at 31.

The DOE consultant psychiatrist stated that if the testimony of the individual’s two friends is accurate, and if the individual himself is being honest about his current drinking level, he is now in remission. Tr. at 167. He stated that it was significant that the individual has not had any alcohol-related problems in recent months and that if he is only using alcohol at the moderate level he claims, it was to the individual’s credit. Tr. at 65-66. However, the DOE psychiatrist did not believe that the individual is rehabilitated from alcohol dependency. At this point, he considered the individual’s prognosis to be guarded. Tr. at 66.

B. Violation of Drug Certification (Criterion L)

With respect to possession of amphetamines, the individual testified that he is not and was not a user of illegal drugs. Rather, he claims that in 1995 he attended a motorcycle rally, and he rode his motorcycle while intoxicated. He stated that he noticed the drugs and drug paraphernalia lying on the side of the road. He claims that he realized what the objects were, but, in an intoxicated state, he picked them up only as a joke to show to three friends who were also attending the rally and whom he was to later meet at a bar. (6) He states that after consuming numerous drinks at the bar, and forgetting about his possession of the illegal material, he was arrested for driving under the influence of alcohol. The drugs and drug paraphernalia were discovered on his person during the arrest. Tr. at 109-10. See also Transcript of Personnel Security Interview (hereinafter PSI Tr.) for August 30, 1995 at 28, 47.

The individual’s counselor testified that she did not address the issue of the individual’s possession of illegal drugs during her therapy sessions. Tr. at 42. The DOE psychiatrist was not convinced by the individual’s statement that he had picked up the drugs on the roadside and that he had no other involvement with amphetamines. Tr. at 36. In this regard, the DOE psychiatrist pointed out that the individual had told him that the only time he actually took illegal drugs involved the use of marijuana in 1984, three days before a drug screen. Tr. at 43. See also August 13, 1993 PSI Tr. at 6,7. The DOE psychiatrist testified that it was improbable that the individual had only two involvements with illegal drugs in his entire life and was caught each time. He believed that it is more likely that the individual has an additional problem with illegal drug use. Tr. at 43-44.

One of the individual’s witnesses accompanied the individual to the 1995 motorcycle rally. He did not have any personal knowledge of the circumstances under which the individual picked up the amphetamines, but did state that the individual told him later on, after he was arrested, that he had picked it up as a joke. Tr. at 134-5. The individual’s other witness, his girlfriend, stated that to her knowledge, the individual currently has no involvement with illegal drugs. Tr. at 143.

IV. Analysis

The Hearing Officer's role in this proceeding is to evaluate the information presented by the DOE Office and the individual, and to render an opinion based on that evidence. The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. See 10 C.F.R. § 710.7(a).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard, which is designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting or restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d).

This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518,531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)(strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

In rendering my judgment in this case, I must consider whether there are factors present to mitigate the DOE's security concerns. Among the factors that I am to consider are those set forth at 10 C.F.R. § 710.7(c). See also § 710.27(a).

A. Alcohol Dependence (Criterion J)

The first question to be addressed is whether the individual is or has been a “user of alcohol habitually to excess or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). As discussed above, there is ample evidence of the individual’s excessive use of alcohol, leading to three DUI incidents and a motor vehicle accident that caused injury. The DOE psychiatrist diagnosed the individual as suffering from alcohol dependence. In addition, the individual admits that he had an alcohol problem. Thus, it is clear that there is sufficient evidence for the DOE to have invoked Criterion J in suspending the individual’s access authorization. Once a security concern has been found to exist, the individual has the burden of going forward with evidence to rebut, refute, explain, extenuate or mitigate the allegations. Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995), aff’d, 25 DOE ¶ 83,013 (1995)(VSA-0005).

As discussed below, I find that the individual has not brought forward sufficient information from which I can conclude that he has mitigated the security concerns raised in the Notification Letter.

In the present case, it is the individual’s position that he has mitigated the security concerns associated with alcohol dependence, because he is no longer using alcohol in excessive amounts, and will not resume excessive use in the future. According to the testimony presented at the hearing, the individual has undertaken the following steps in order to rehabilitate himself from alcohol dependence. He has undergone a court-ordered 60-hour group therapy program that took place over a five month period. Tr. at 17. The therapy included 20 hours of education on drinking and driving and 40 hours of therapy that taught skills and behavior to control and manage alcohol use. Although he admitted using alcohol heavily at the time that he entered the program, the individual stated that he has significantly reduced his use of alcohol. Tr. at 166. In this regard, he maintained that since January 1997, he has only consumed three drinks of alcohol. The individual indicated that during the period between April and October 1996, he had several beers at home on two occasions. Tr. at 159.

As discussed above, two friends of the individual confirmed that recently they have not seen him use alcohol to excess. One friend testified that in August 1997, he and the individual once again attended the motorcycle rally that they had previously attended in 1995. The individual’s friend stated that this time the individual did not become drunk and, over the course of the 6 days that they were together, he only saw the individual drink two beers. Tr. at 131.

The individual’s girlfriend testified that she has been a regular companion of the individual since December of 1996. Tr. at 138. She stated that she spends a considerable amount of time with him each week. She is with him for the entire weekend, as well as several evenings during the week. Tr. at 148-49. She indicated that during the time that they are together, the individual does not use alcohol. Tr. at 143. She further stated that since December 1996, the only time she has seen the individual use alcohol was on New Year’s Eve, when he had one alcoholic drink. Tr. at 139.

This testimony is certainly in the individual’s favor. Based on this evidence, I believe that the individual has reduced his alcohol consumption since December 1996. However, I cannot conclude that he has reduced his alcohol use prior to that time. The friend who attended the motorcycle rally with him has seen the individual only on a very limited basis over the last two years, and is not familiar with his recent overall level of alcohol use. Tr. at 127. There is no other evidence corroborating the individual’s alcohol consumption prior to December 1996. Thus, I am only able to conclude that the individual has reduced his use of alcohol during the past 10 months, since December 1996.

Moreover, while the testimony of the individual’s friends confirms some reduction in his alcohol use, I am not at all convinced as to this individual’s true intentions with respect to consumption of alcohol. In particular, I note the individual’s letter dated May 5, 1997, which was written in order to request an administrative review of the recommended denial of the request for a security clearance. In that letter, the individual stated “I have not had a drink containing alcohol since mid July 1996. I do not intend to consume alcohol ever again. I know it is a problem for me and will continue to be if I ever drink again.”

As indicated above, there was testimony by the individual’s girlfriend that he had an alcoholic drink on New Year’s Eve of 1996-7. Thus, the individual did not give a true account of his recent alcohol use in the May 1997 letter. Moreover, although he stated in the letter that he did not intend to consume alcohol ever again, he clearly did not maintain that goal. In August 1997, he consumed two beers. Even though this level of use is minimal, I am not at all convinced about this individual’s intentions with respect to alcohol, and his overall truthfulness about his actual use. In particular, I note that in May, when he wrote the letter, he stated that alcohol would be a problem for him if he ever used it again. By August, he had apparently abandoned that notion. It is not clear why, by the time of the hearing, he changed his view, and now believes that alcohol use will no longer be a problem for him. I find his lack of candor regarding his alcohol use, and his wavering with regard to his intentions seriously diminish his credibility in this matter. (7)

Furthermore, I was not persuaded by the testimony of the individual’s counselor. She stated that the individual is not in “complete remission” because he continues to drink alcohol. Tr. at 21. Nevertheless, because he is currently not drinking to excess, she believes that he is no longer a “problem drinker.” She believes that as long as he does not use alcohol to excess, he will not exercise bad judgment. Tr. at 29.

I do not find this assessment convincing. Given the severe level of this individual’s alcohol-related problems, I believe that there is currently a security concern if this individual continues to use alcohol. In my view, there is still a high risk that he may return to excessive alcohol use. As recently as May 1997, the individual could not accurately describe his recent alcohol use or accurately predict his future use of alcohol. After only a ten- month period during which the individual has demonstrated reduced alcohol use, I believe that it is premature to find that his use of alcohol, even at a reduced level, is no longer a security concern.

Moreover, I was not persuaded that the individual’s counselor had a complete understanding of the severity of this individual’s alcohol and substance problems. She counseled him only in group therapy. Tr. at 23. Her counseling was based on an incomplete understanding of the number of times that the individual had alcohol-related driving incidents. Tr. at 32, 60. (8) While the individual did indicate to the counselor that he had a conviction for possession of amphetamines, she did not address this problem. Tr. at 42. I believe that the therapy program that she recommended for the individual was based on her limited view of the severity of his abuse problem. (9)

In particular, she did not formulate a therapy plan for this individual that included some of the most common components of alcohol therapy programs. For example, while she suggested that the individual remain sober during his active treatment period, she did not require that he do so. Tr. at 31. She testified that it would be a “good idea” for this individual to be totally abstinent from alcohol for at least a year, but that it was not a necessary component of a complete rehabilitation program. Tr. at 30. She is very much in favor of the Alcoholics Anonymous (AA) program, but did not expect the individual to participate in it. Tr. at 21. She gave as a reason that the individual, while alcohol dependent, was not an alcoholic. She believed that AA is for alcoholics. Tr. at 27. She stated that an alcoholic is one who “cannot stop drinking once they start drinking.” Tr. at 38. However, she did not believe that the individual fit this pattern. She considers the individual to have been alcohol dependent, someone who may drink excessively but then cease alcohol use for a period of time. She contrasted this with an alcoholic, someone who “drinks 10, 12 drinks and desires to just keep going [drinking alcohol] the next day.” Tr. at 38. While the two types of alcohol users that she described may indeed require different therapy programs, I do not see the distinction as a basis for not expecting this individual’s participation in AA.

Overall, I believe that her approach to treatment for this individual was not sufficiently thorough, given that the individual’s protracted and excessive use of alcohol admittedly caused him severe financial, legal, personal and professional problems. Tr. at 98, 118, 121.

I was more convinced by the analysis and approach of the DOE psychiatrist. He indicated that, assuming the witnesses were accurate and the individual is being honest, the individual has been in remission for a period of time. The DOE psychiatrist stated that being in remission means that the user is no longer exhibiting symptoms of alcohol dependence, such as excessive use, inability to refrain, or signs of tolerance. Tr. at 103.

However, the DOE psychiatrist testified that although the individual may be in remission, he is not reformed or rehabilitated. He testified that rehabilitation is a concept. It involves looking at the user’s overall lifestyle. Tr. at 104. According to the DOE psychiatrist, rehabilitation is a way of life. Tr. at 106. He testified that the components of rehabilitation include remission, a stable lifestyle and honesty about one’s substance abuse. Tr. at 166. (10) The length of time that this new lifestyle must endure in order to consider a substance user rehabilitated is based on the severity of the dependence. Tr. at 104. The DOE psychiatrist testified that in this case, he believes a two-year period is warranted. Tr. at 64, 104. He indicated that the prognosis for this individual is guarded and he is not convinced that the individual can maintain his pattern of limited alcohol use. Tr. at 63, 66. He believes that the individual should totally abstain from alcohol use. Tr. at 64, 165. He stated that the individual seems to now have a more stable lifestyle and currently appears to be in remission. However, he did not think that the individual had maintained these two elements of rehabilitation for a sufficient period of time. Tr. at 64. He also testified that the individual has not yet succeeded in being completely honest about his alcohol use. Tr. at 166.

I am convinced by the DOE psychiatrist’s evaluation. The individual has not been totally honest with me, the DOE psychiatrist or his alcohol counselor as to his past and present alcohol use, or his intentions regarding alcohol consumption. I am uneasy about the significant inconsistencies and wavering in his statements regarding this issue. They suggest to me that the individual has not yet reached the stage of total honesty about his condition that the DOE psychiatrist considers extremely important to rehabilitation. I also do not believe the individual has maintained a stable lifestyle and a pattern of reduced alcohol use for a sufficient period of time. Thus, I cannot find rehabilitation from alcohol dependence in this case.

As is evident from the above discussion, I find that this individual has not provided sufficient evidence to allow me to conclude that he no longer presents a security concern with respect to Criterion J.

A procedural matter arose at the hearing which bears addressing at this point. At the hearing, the individual’s attorney raised an issue regarding presentation of additional evidence that might convince the DOE psychiatrist that the individual was rehabilitated. The DOE psychiatrist indicated that there were some laboratory tests that could be performed to establish whether the individual had recently abused alcohol. Tr. at 63-64. The psychiatrist indicated that these tests might permit him to make a more accurate assessment of the individual’s current status. The individual’s attorney suggested that without performing these additional tests, the hearing process could not be fruitful and might be unfair, because the DOE psychiatrist’s viewpoint was based on an evaluation that took place more than one year prior to the hearing. Tr. at 64-79. The individual’s attorney seemed to think that the individual should be permitted to undergo these tests and submit the results as evidence.

The DOE psychiatrist testified that the additional tests would only indicate whether or not the individual was continuing to abuse alcohol. Tr. at 75-76. However, even if the tests showed that the individual was not currently using alcohol to excess, they would not establish that overall rehabilitation, of the type discussed above, had been achieved. Id. Thus, I am not convinced that it would be useful to hold open the record for the limited purpose of allowing the individual to have these additional tests performed and furnish the results.

B. Violation of Drug Certification (Criterion L)

As stated above, the individual has admitted that he was in illegal possession of amphetamines. He has therefore violated his commitment to the DOE not to have any involvement with illegal drugs. This raises a security concern under Criterion L.

To mitigate the security concerns raised by this violation, the individual maintains that the possession was a one-time event. He indicates that he did not purchase the drugs or intend to use or sell them. Tr. at 111. Rather, he claims that he attended a motorcycle rally and, while riding his motorcycle in an intoxicated state, he noticed the drugs and drug paraphernalia lying on the side of the road. He claims that he realized what the objects were, but he picked them up only as a joke to share with three friends, who were also attending the rally. The individual stated that after consuming numerous drinks at a bar, and forgetting about his possession of the illegal material, he was arrested for driving while intoxicated. The drugs and drug paraphernalia were discovered on his person during the arrest. Tr. at 109-10.

These contentions regarding the drug possession, if true, certainly show very poor judgment by the individual, but might nevertheless mitigate the overall seriousness of the occurrence. They suggest that the possession of amphetamines was isolated, and an unpremeditated incident. According to the individual, the possession did not include any intent to use or distribute the drugs. These are the types of factors that I am to consider under 10 C.F.R. § 710. 7(c). They relate directly to the nature, extent and seriousness of the conduct, the circumstances surrounding the conduct, the frequency of the conduct and the motivation for the conduct. In this regard, in these administrative review proceedings, a security concern under Criterion L, related to violation of a drug certification, may be mitigated if it was a one time occurrence and there is adequate evidence of rehabilitation. See Personnel Security Hearing (VSO-0116), 26 DOE ¶ 82,765 (1997). In order to find the existence of mitigating circumstances as alleged by an individual involved in a proceeding under Part 710, I must receive appropriate evidence to show that the circumstances described by the individual are true. Personnel Security Hearing (VSO-0094), 26 DOE ¶ 82,753 (1996).

The individual’s explanation of how he came to possess the amphetamines and what he planned to do with them seemed highly improbable. Although I recommended to the individual that he bring forth corroboration, such as witnesses, to support his explanation, he failed to do so. See Letter of July 17, 1997. The friend who testified at the hearing and accompanied him to the rally had some knowledge of the events surrounding the individual’s arrest for possession of amphetamines. However, this knowledge came only as a result of what the individual related to him. The friend had no direct knowledge of how the individual came to possess that substance. Tr. at 134. In view of the lack of corroboration as to the circumstances surrounding the amphetamine possession, I am not persuaded by the individual’s explanation of how he came to possess the drugs and his intentions with respect to the drugs.

I therefore find that the individual has not mitigated the DOE’s security concerns with respect to Criterion L.

V. CONCLUSION

In the above analysis, I have found that there is significant derogatory information in the possession of the DOE that raises serious concerns under Criteria J and L as to whether the request for access authorization for this individual should be granted. I have also found that the individual has failed to bring forth sufficient evidence to mitigate these security concerns. I am therefore unable to find that granting the individual access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual should not be granted access authorization.

The regulations set forth at 10 C.F.R. Section 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer’s Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, 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 OHA Director 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 with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: October 28, 1997

(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. This authorization will also be referred to in this Opinion as a security clearance.

(2)Criterion J includes information that the individual has “been or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.”

(3)Criterion L includes information that the individual has “engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to criminal behavior, a pattern of financial irresponsibility or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.”

(4)The counselor testified that she is a “certified addiction counselor, level III,” the highest level available in the State in which she practices and in which the individual resides.

(5)This charge was eventually reduced to Driving While Ability Impaired (DWAI).

(6)One of these friends was a witness at the hearing.

(7)I also note that this is not the first time this individual has portrayed to the DOE an intention to give up alcohol use. He made a similar statement in a Personnel Security Interview of May 2, 1996. PSI Tr. at 20. However, in June 1996, during his evaluation with the DOE psychiatrist, he admitted to having resumed some alcohol use. DOE Exh. 14 at 2. During that evaluation, the individual told the DOE psychiatrist that he needed to have the right to consume alcoholic beverages in his own home. Id. at 9.

(8)The individual did not reveal all of his alcohol offenses to the counselor. Tr. at 39-40.

(9)A primary consideration of the counselor appeared to be whether the individual would refrain from operating a motor vehicle while under the influence of alcohol. See 10/28/96 Letter, DOE Exh. 6 at 2.

(10)He also believed that participation in AA was necessary for this individual. Tr. at 164.