Case No. VSO-0187, 27 DOE ¶ 82,763 (H.O. Wieker April 17, 1998)

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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.

April 17, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 5, 1997

Case Number: VSO-0187

This Opinion concerns the eligibility of xxxxxxxxxx (the individual) for an access authorization. The regulations governing eligibility for access authorization 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 testimony and other evidence presented in this proceeding, the individual should be granted access authorization.

I. BACKGROUND

The individual is a 34 year old scientist with a masters degree. In connection with his request for access authorization, the individual provided the DOE with the following information regarding his past mental health. When he was in high school, he took an overdose of Tylenol No. 3 in an attempt to commit suicide. After that incident he was voluntarily hospitalized and treated for depression. The inpatient treatment lasted three weeks while the follow up treatment lasted a few months. Personnel security interview at 7. The individual had no further psychological treatment until six years later when he decided that he needed relationship counseling. He received individual counseling from a psychologist from 1987 through 1994. The psychologist diagnosed him as suffering from Avoidant Personality Disorder. Transcript at 100. That counseling initially was on a weekly basis, then on a

biweekly and then on a monthly basis. Finally, the sessions were on an as needed basis as the treatment neared completion. Letter from treating psychologist and Transcript at 100. During that treatment he received one prescription for Valium to take on an as needed basis. He indicated that he took the Valium only a few times and never renewed the prescription. Personnel security interview at 15. The individual indicated he has had recurring thoughts of suicide. Personnel security interview at 9. He also indicated that he is not an “incredibly happy” person. Personnel security interview at 10.

On the basis of the information that the individual provided, the DOE security specialist referred the individual to the DOE consulting psychiatrist for evaluation. The DOE consulting psychiatrist diagnosed the individual as suffering from dysthymic disorder and found that condition could adversely affect his judgment and reliability.

Upon receipt of the consulting psychiatrist’s report, the DOE Operations Office (the DOE office) issued a Notification Letter to the individual. The Notification Letter stated that information in the possession of the DOE office created a substantial doubt concerning the individual’s eligibility for an access authorization. The Notification Letter stated that, based on the DOE consulting psychiatrist’s report, the individual has an illness or mental condition which in the opinion of a psychiatrist may cause a significant defect in judgment or reliability and therefore the individual is a security concern pursuant to 10 C.F.R. § 710.8(h) (Criterion H). The Notification Letter indicated that the DOE consulting psychiatrist had found that the individual is suffering from dysthymic disorder. The three factual findings contained in the Notification Letter are:

(1) [The individual] has a history of chronic depression the onset of which was probably in his childhood. In his senior year of high school, he attempted suicide with an overdose. He was hospitalized and later treated as an outpatient and prescribed antidepressants.

(2) [The individual] was in counseling for over seven years. He discontinued counseling in 1994. He has not taken any medication since his outpatient treatment. [The individual] continues to be depressed. His diagnosis is dysthymic disorder, a form of mood disorder characterized by a depressed mood.

(3) [The individual] continues to have suicidal ideations. Because he is not in treatment, he is vulnerable to stressors. He can decompensate and become unstable with stressors. His continued depression can seriously impact his judgment and reliability.

After receiving the Notification Letter the individual requested a hearing. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was held. A hearing provides “the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Six witnesses testified at the hearing. Two witnesses were called by the DOE office. The first was a DOE security specialist. The second was the DOE consulting psychiatrist who had examined the individual.

The individual called four witnesses: (i) his evaluating psychologist, (ii) his sister, (iii) his girl friend, and (iv) himself.

The individual maintains that the diagnosis of dysthymic disorder exaggerates his emotional state. January 7, 1998 Letter from the individual to the Hearing Officer. In that letter the individual also maintains that he does not have a defect in judgment and reliability. As discussed below the testimony of the individual’s psychologist and the closing testimony of the DOE consulting psychiatrist clearly indicate that the individual is not suffering from dysthymia.

II. TESTIMONY AND DOCUMENTARY SUBMISSIONS

A. The DOE consulting psychiatrist

The DOE consulting psychiatrist saw the individual for one evaluation session. On the basis of that session and a review of the documents supplied to him by the DOE, he submitted a five page report to the DOE Office. That report indicates that the individual “has an ongoing depression that continues to be characterized by different symptoms, including suicidal ideations. He is not in treatment for this condition, and his history points out that he is vulnerable to stressors.” Report at 5. The DOE consulting psychiatrist’s report bases the evaluation on the individual’s high school suicide attempt, his 1987 through 1994 psychological counseling and the individual’s statements that he has fleeting thoughts about suicide. In addition, the DOE consulting psychiatrist’s report indicates that he observed that the individual was suffering from an underlying depression and appeared distant during the interview. Report at 4. The DOE consulting psychiatrist summed up his evaluation by indicating that the individual’s “affect was appropriate, but there was a distinct diminished emotional tone.” Report at 4.

At the hearing the DOE consulting psychiatrist testified that dysthymic disorder is a category of depression that is less severe than major depression. He testified that a person suffering from dysthymia:

experiences a depressed mood, a lack of enthusiasm or diminished motivation, and sometimes irritability, and for most of the day they feel depressed. And there are more -- or, there are many days that they feel depressed, and this depression is usually of a chronic nature, it’s long-term, it lasts more than two years.

Transcript at 33.

The DOE consulting psychiatrist testified that the individual’s sole mental disorder was dysthymia. Transcript at 59. He further testified that he utilized the DSM-IV (1) criteria to diagnose dysthymia. The criteria that should be satisfied for a diagnosis of dysthymic disorder specified in the DSM-IV are:

A. Depressed mood for most of the day, for more days than not, as indicated either by subjective account or observation by others, for at least 2 years.

B. Presence, while depressed, of two (or more) of the following:

(1) poor appetite or overeating

(2) insomnia or hypersomnia

(3) low energy or fatigue

(4) low self-esteem

(5) poor concentration or difficulty making decisions

(6) feelings of hopelessness

The DOE consulting psychiatrist testified that he accepted the individual’s statements that he had only passing thoughts of suicide. He then testified that the individual was in no current danger of actually attempting suicide.

[The individual] did mention that thoughts of suicide do still occur. But they are primarily in the nature of what you would consider like passing thoughts instead of something that would preoccupy him. Instead of a thought pattern that would lead to actual planning, which is considered more serious.

Transcript at 38.

Notwithstanding his conclusion that the suicidal thoughts were passing and would not lead to an actual suicide attempt, the DOE consulting psychiatrist testified without explanation that the individual’s suicidal ideations led the consulting psychiatrist to conclude that the individual was depressed more days than not and therefore the individual meets Criterion A. Transcript at 65. The DOE consulting psychiatrist was then asked to describe the two Criterion B symptoms that he believed the individual has experienced and which formed the basis for his diagnosis of dysthymia. The DOE consulting psychiatrist was unable to recall which symptoms he found the individual to have experienced. Transcript at 65.

The DOE consulting psychiatrist was asked, if the individual had no mental illness, whether he could still have a defect in judgment and reliability. He responded

Yes, [he] could. But in that instance I would not render that opinion, because if I could not establish a mental illness or disorder I [would] defer to maybe an administrative specialist to make their . . . determination.

0Transcript at 59.

B. The individual’s psychologist

The individual’s psychologist testified that she saw the individual three times for the purpose of evaluating his mental condition. (2) In addition to the three evaluation sessions she gave the individual several psychiatric tests. Transcript at 70. Her testimony indicated that she was familiar with the individual’s problems in high school and his psychological counseling.

Based on her interviews, the results of the psychiatric tests and her knowledge of the individual’s history she testified that her overall sense is that the individual does not have a mental disorder. She stated that the individual has

a slightly negative outlook on life. Which seems to be sort of the lens through which he looks at life with. That he is on the socially-awkward side, so he doesn’t quite conform in that manner, and feels, you know, like he’s sort of marching to the beat of a slightly different drum.

And my sense is that’s sort of a characterological style as opposed to a diagnosable affective disorder. I don’t really see a way in which the -- that listlessness sometimes, or the -- you know, the mild negativity. It doesn’t seem as though it causes him distress. . . . [I]t seems to me, in looking at the whole picture, that I would -- I would see it more as the way he kind of --he looks at the world.

Transcript at 72.

She was asked specifically whether she would diagnose the individual as having dysthymia. She responded

No. I wouldn’t.

I think that the diagnosis of dysthymia, in my mind, really would require a greater level of disease. . . .

[H]e doesn’t seem to be hopeless or have any problems with concentration.

And, while he -- you know, while he has problems socially he doesn’t seem to have a particularly low self-esteem. I mean, he was very confident in terms of relationships that he has formed, you now, the ones that are fairly developed.

And also in terms of work, the work setting, he sounds like he has a lot of self-esteem about how he -- what kind of work he does.

Transcript at 76.

She was asked by the DOE counsel whether the individual’s judgment is impaired. She testified that his judgment was not impaired. She explained:

One of the -- one of the things I didn’t mention was it seems part of his character style is to be fairly reserved. And, you know, my sense is that . . . he’s not the kind of person who’s going to, you know, go around talking about things. That he’s not impulsive, he doesn’t tend to share a lot about himself anyway. . . .

In terms of his judgment and reliability, you know, again the scores look to me like he is not an impulsive person, a person inclined toward flightiness or mood swings. He seems pretty steady to me. You know, even though his baseline is, you know, on the -- on the low energy, you know, the mildly negative pattern that I described before, he seems very steady. . . .

You know, there’s a consistency about his personality that -- I mean, my interpretation is that there is a -- there’s sort of a groundedness or, you know, steadiness I guess is the best word.

Transcript at 78.

C. Other testimony

The security specialist testified that the individual was “very honest and forthright.” Transcript at 18. She indicated that he answered all questions that were asked and there was “no hesitation.” Transcript at 18. The testimony from the individual’s sister, and his girl friend provided support that the individual had a stable social life. They both testified that they had seen the individual in a variety of social situations that included regular daily activities and group social situations. Their testimony indicated that the individual has a normal social life that included various activities with friends and acquaintances.

The individual testified that he moved across the country to start his new job at the DOE facility. At the time he was interviewed by the DOE consulting psychiatrist, the individual was living in an apartment in a small community near the site. Living at that location he felt somewhat isolated and was not happy with his social life. He therefore decided to move to a larger nearby community, enroll in some classes and take part in outings in order to enlarge his circle of friends. Transcript at 97. He indicated these efforts were successful and he has been brought into a circle of friends and now has a steady relationship with his girl friend, who testified at the hearing. Transcript at 97. In response to a question he described his suicidal ideations as “. . .flashes that I have of thoughts of suicide. And it’s usually pretty quick, maybe a few seconds. It’s sort of like an image in my mind or something.” Transcript at 98.

Finally, the Individual submitted a number of documents to show that he is reliable and a hard worker. He submitted letters from two supervisors, his college and graduate school transcripts as well as a list of his publications. The letters from his supervisors indicate the individual is a conscientious and reliable worker. The transcripts from his college and graduate school indicate he was an excellent student who was dedicated to his studies.

III. ANALYSIS

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 proceeding, the standard is designed to protect national security interests. The burden is on the individual to come forward at the hearing with testimony or evidence to demonstrate that 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). I find the individual has met that burden in this case.

The testimony of the individual’s psychologist indicates an understanding of the individual’s life style and behavior pattern. I was very impressed by the thoroughness and candor of her testimony. I believe she understood the individual’s personality and his behavior pattern. She was also familiar with the DSM-IV criteria for dysthymia. Her opinion that the individual is not suffering from dysthymic disorder was clear and convincing.

At the end of the hearing the DOE consulting psychiatrist was asked for his impression of the testimony of the various witnesses. It is clear that the DOE consulting psychiatrist was impressed by the knowledge of the individual’s psychologist. He indicated that the individual’s psychologist “elicited a rather comprehensive evaluation and workup, and the tests that she administered were indeed quite useful.” Transcript at 119. When asked whether he would currently diagnose the individual as suffering from dysthymia he indicated “I will not diagnose dysthymic disorder as being evident at this point.” Transcript at 121.

Thus both experts agree that a current diagnosis of dysthymia is incorrect. I agree with their finding.

Criterion H specifies that a security concern is raised if an individual has “[a]n illness or mental condition . . . that may cause a defect in judgment or reliability.” In view of the concerns of the DOE consulting psychiatrist regarding the individual’s psychological history and suicidal ideations, I believe it is appropriate to consider whether absent the diagnosis of a specific mental “illness” the individual’s symptoms constitute a “mental condition” that in the opinion of a psychiatrist causes a defect in the individual’s judgment or reliability.

The DOE consulting psychiatrist often referred to the suicide attempt. However, he never indicated why that event would indicate a current “mental condition” that might create a judgment concern. In this regard, I agree with his evaluating psychologist that the suicide attempt was related to adolescent conflicts that have little bearing on the behavior of a person in his thirties. Transcript at 74. That suicide attempt was a single event which occurred when the individual was in high school. The seriousness of the attempted suicide is mitigated by the 16 years that has passed with no other attempts and by the youth of the individual when the event occurred. 10 C.F.R. § 710.7(c).

With respect to the individual’s current suicidal ideations, the testimony indicates that these are fleeting thoughts, and neither expert believes there is any planning or intent to commit suicide. I believe the individual’s honesty about those thoughts indicates openness and maturity which would indicate good judgment. The DOE consulting psychiatrist seems to believe that this particular individual’s momentary thoughts could cause a defect in his judgment or reliability. However, given the psychiatrist’s belief that there was no planning or intent by the individual and his failure to explain why the fleeting thoughts should be considered a “mental condition” that might cause a defect in judgment or reliability, I do not find that opinion particularly persuasive. I am more convinced by the individual’s psychologist that such fleeting thoughts do not indicate a defect in the individual’s judgment or reliability.

Finally, I must consider the psychiatric testimony on whether the individual’s counseling between 1987 and 1994 and the testimony that the individual is not an extremely happy person constitute evidence of a “mental condition” that might cause a defect in judgment. The counseling seemed to come to a successful conclusion four years ago and the DOE consulting psychiatrist has not indicated any reason why that treatment would indicate a “mental condition” that might cause a defect in judgment. With respect to the fact that the individual is not an extremely happy person, the DOE consulting psychiatrist mentioned this character trait on a number of occasions without providing any type of explanation of why such a character trait should be considered a “mental condition” that could adversely affect judgment and reliability. The DOE consulting psychiatrist has indicated that he would not find a judgment and reliability problem unless he was able to diagnose a specific mental “illness.” As a result of additional information provided at the hearing, he no longer endorses a diagnosis of dysthymia for the individual. Nor did he provide any other reason to believe that the facts discussed above constitute a “mental condition” that would adversely affect the individual’s judgment or reliability. The individual’s psychologist clearly and convincingly testified that she believed there is no mental condition that would cause a defect in his judgment or reliability. She testified that the individual’s character was mildly negative. Nevertheless, she testified that he was a stable person that would not be impulsive and could be counted on to act responsibly. I note that the individual has been honest and candid throughout this proceeding and there is no indication that he has ever acted irresponsibly since his high school suicide attempt 16 years ago. On the basis of the testimony in this case I am convinced that his 1987 through 1994 counseling for relationship problems, his fleeting suicidal ideations and his general outlook on life do not rise to the level of “mental condition” that would cause a defect in the individual’s judgment or reliability.

IV. CONCLUSION

I have been persuaded by the evidence brought forward in this case that granting the individual access authorization would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, I find that the individual should be granted an access authorization.

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 Director, Office of Hearings and Appeals, 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.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: April 17, 1998

(1)Diagnostic and Statistical Manual-IV of Mental Disorders of the American Psychiatric Association (4th ed. 1994) (DSM-IV).

(2)After receiving the Notification Letter the individual arranged to be evaluated by a psychologist.