Case No. VSO-0203, 27 DOE ¶ 82,773 (H.O. Tao August 31, 1998)

For full history of this case, and links to other cases, click here.

* 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.

August 31, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing:April 8, 1998

Case Number: VSO-0203

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXX (hereinafter "the individual") to retain his 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 is an employee of a Department of Energy (DOE) contractor. As a condition of his employment, the DOE and the contractor require that the individual maintain a security clearance. Following a report that the individual might have been under the influence of alcohol while at work, the individual’s supervisor requested that the individual undergo a fitness for duty evaluation. This evaluation included two blood alcohol tests indicating that the individual had blood alcohol readings of .036 and .031. A few months later, the local DOE Security office (DOE Security) conducted a Personnel Security Interview (PSI) with the individual. Following this interview and the individual’s interview with a DOE consultant- psychiatrist, DOE Security determined that derogatory information existed that created questions regarding the individual’s continued eligibility for access authorization. Accordingly, a DOE official suspended the individual’s access authorization.

On March 5, 1998, the DOE official informed the individual of the suspension of his access authorization in a letter that set forth in detail DOE Security’s concerns. I will hereinafter refer to this as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information. Specifically, the Letter included information described in 10 C.F.R. § 710.8(j). The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer to resolve the substantial doubt regarding his continued eligibility for access authorization.

The individual responded to the Notification Letter by requesting a hearing. A DOE official forwarded the individual’s request to the Office of Hearings and Appeals (OHA). Upon receiving the individual’s request, the Director of the OHA appointed me the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(f), I conducted a prehearing telephone conference with the parties and convened the hearing eight days later. DOE Security called the following four witnesses at the hearing: the individual, a security specialist, a DOE consultant-psychiatrist, and the individual’s supervisor. The security specialist testified regarding DOE Security’s concerns and the consultant-psychiatrist testified concerning his evaluation of the individual. The individual’s supervisor testified regarding the individual’s job duties and performance. The individual testified and presented the following six additional witnesses at the hearing: his four treatment counselors, his Alcoholics Anonymous sponsor, and his primary care physician. All these witnesses testified regarding the individual’s treatment program and related matters.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual included a statement of derogatory information in the possession of the DOE that created a substantial doubt as to the individual’s continued eligibility to hold a security clearance. On the basis of that derogatory information, the DOE Official believes that the individual “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.” See 10 C.F.R. § 710.8(j). Specifically, the Notification Letter states that the individual underwent a DOE psychiatric examination in 1997. Following these examinations, the DOE consultant-psychiatrist determined that the individual met the clinical criteria for alcohol dependence and that there had not been adequate evidence of rehabilitation or reformation. The Notification Letter also states that (1) the individual has had an alcohol problem for a period of ten years; (2) the individual drank to intoxication nightly or until passing out; (3) on the night prior to the day his employer administered a breathalyser test that resulted in readings of .031 and .036, the individual consumed a fifth of scotch; (4) following the employer-administered breathalyser test, the individual continued consuming alcohol for approximately six weeks; (5) the individual had high liver enzyme levels for five years; (6) the individual felt that if he had to give up alcohol he would die; and (7) a doctor prescribed Revia to the individual to help him reduce his alcohol cravings.

III. Analysis

The criteria for determining eligibility for security clearances set forth at Part 710 dictate that a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances and make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Id. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual’s potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). 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. Finally, I note that it is incumbent upon the individual 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. § 710.7(a). After careful consideration of these factors and all the evidence in the record in this proceeding, I find that the individual has made this showing. Thus, I must recommend that the DOE restore the individual’s clearance.

From the record in this case, I find that the individual’s pattern of alcohol consumption satisfies the criteria outlined in 10 C.F.R. § 710.8 (j). As stated above, a board-certified psychiatrist diagnosed the individual as alcohol dependent. Furthermore, the individual does not dispute the DOE allegations surrounding the individual’s past alcohol consumption.

The individual provided several details regarding the severity of his alcohol problem during a 1997 Personnel Security Interview. He stated that somewhere between 1987 and 1992, he realized that he had a problem with alcohol. DOE Exhibit 5 at 42. Moreover, the individual believes that he had a problem with alcohol when he came out of college more than ten years ago. Id. The individual states that he drank to intoxication “essentially every night with few exceptions.” Id. at 71. At this time, the individual believed that if he had to give up alcohol, he would die. Id. at 55. The individual admits that on the evening prior to the day in May 1997 when his employer administered a breathalyser test that resulted in readings of .031 and .036, he probably consumed a fifth of scotch. Id. at 40. The individual also states that following this breathalyser test, he continued consuming alcohol for approximately six weeks. Id. at 72-73. Once the individual began an alcohol treatment program, the individual states that his physician prescribed for him a drug called Revia to reduce his alcohol cravings. Id. at 19. Finally, at the hearing, the individual’s physician testified that in the last five years, the individual’s liver enzyme levels have been in a range higher than the “normal range” of zero to 80. Hearing Transcript at 227-28 (hereinafter referred to as Tr.).

The individual argues that despite his alcohol problems, a number of mitigating circumstances exist. Specifically, the individual states that he has not taken a drink of alcohol in more than one year and that his extensive recovery activities and treatment programs ensure that his alcohol dependency is in permanent remission. The individual also provided the supportive testimony of several expert witnesses who have been involved in his recovery activities. One witness, an alcohol counselor the DOE contractor employs, testified that he counseled the individual once a week for the 13 months preceding the hearing date. Tr. at 165-66. The individual’s Alcoholics Anonymous (AA) sponsor testified that early in the individual’s recovery, he saw the individual at AA meetings four or five nights a week. Tr. at 171. He also stated that the individual’s AA attendance has been fairly consistent and regular since June 1997 to the date of the hearing. Tr. at 172. The individual also provided testimony from a licensed clinical mental health counselor with a Ph.D. in physiological psychology, who testified that she conducted 89 biofeedback therapy alcoholism rehabilitation sessions with the individual since November 1997 to the date of the hearing. Tr. at 182. She stated that the individual was extremely faithful in attending these therapy sessions. Tr. at 183. A licensed master social worker also testified on the individual’s behalf. She stated that in the initial stages of treatment, the individual was in group therapy on a daily basis, but that the frequency of the therapy eventually decreased to three times per week and then to twice per week. Tr. at 200. A licensed clinical psychologist also testified that since the middle of May 1997, the individual followed her alcoholism treatment regimen “very consistently.” Tr. at 210. The individual’s physician also testified that she treated the individual since May 1997 for withdrawal and nutrition problems related to the individual’s recovery. Tr. at 223-24.

Five of the individual’s witnesses testified that they believe the individual has maintained his sobriety since June 1997, the date he states that he last consumed alcohol. Tr. at 165, 174, 201-03, 211, 233. The individual’s sixth witness testified that since she first met the individual and became involved in his treatment in November 1997, she believes he has not consumed any alcohol. Tr. at 184. Also, the physician, the licensed clinical psychologist, and the alcohol counselor, testified that they do not believe the individual could resume drinking alcohol in a controlled manner. Tr. at 165, 215, 236. Specifically, the individual’s physician testified that she believes that after 20 years of consuming alcohol, the individual cannot maintain controlled drinking. Tr. at 236. She believes the individual is either going to have lifelong abstinence or be a nonfunctional alcoholic. She does not believe the individual has an “in between.” Tr. at 236.

The DOE consultant-psychiatrist testified that he met with the individual in December 1997 and then felt that the individual had most likely resumed consumption of alcohol. Tr. at 47. The reason for the DOE consultant-psychiatrist’s belief was that the individual’s Gamma-Glutamyltransferase (GGT) liver enzyme levels had not returned to a level below 80 within four weeks of the date the individual stated that he had stopped consuming alcohol. Tr. at 52. Absent additional factors not present in this case, the DOE consultant-psychiatrist testified that it should take somewhere between a week to four weeks for the liver enzyme level to return to a reading below 80. Tr. at 49-51. He also stated that “[t]he predictive levels are on the order of a hundred percent that if somebody has an increase [of greater than 20%] in their GGT levels following their abstinence . . . that that just about always means that they have relapsed.” Tr. at 54. Since the individual’s GGT levels had increased “about 30 percent” from October 1997 to December 1997, the DOE consultant-psychiatrist concluded that “something is hurting his [the individual’s] liver and it’s most likely alcohol.” Id. Based on the individual’s GGT levels, the DOE consultant-psychiatrist testified that he believes the most likely scenario is that the individual is a casual drinker. Tr. at 71. That is, he believes the individual suffers from an occasional relapse. Tr. at 71.

The record indicates that as of 1989, the individual had two GGT readings below 50. Individual’s Exhibit Y. From late 1992 the individual’s GGT levels rose steadily from around 200 to a peak in May 1997 of over 1100. Id. The individual’s GGT levels showed a marked decrease shortly after the time the individual stated that he had stopped consuming alcohol. His first GGT reading following his stated abstinence from alcohol consumption occurred in July 1997 when the individual’s GGT level dropped below 450. Id. Since July 1997, the individual has had seven more GGT level readings from a few different laboratories. These readings have shown a downward trend, but three instances exist where the reading increased rather than decreased. Id. The individual’s last GGT reading before the hearing occurred in June 1998. At that time, his GGT level was around 175. Id.

The DOE consultant-psychiatrist acknowledged a “paradox” regarding his findings. Tr. at 54, 56. Although the lab GGT levels indicated to the DOE consultant- psychiatrist that the individual resumed consumption of alcohol, he acknowledged that many factors indicated otherwise. Specifically, he acknowledged that the individual was involved in an “unusually rigorous treatment program” and the individual had assured the DOE consultant-psychiatrist that he had abstained from consuming alcohol since June 1997. Tr. at 47, 48. Furthermore, the individual had passed the DOE consultant-psychiatrist’s December 1997 test that screened for alcohol. Tr. at 48. In fact, this “paradox” was powerful enough for the DOE consultant-psychiatrist to testify that since the individual had “such a rigorous [treatment recovery] program” that he “would lean toward a one-year completion of such a program as showing evidence of adequate rehabilitation” if the individual’s GGT levels had dropped below 80 within four weeks after he stopped consuming alcohol. Tr. at 97-98. Thus, the DOE consultant-psychiatrist’s reason for believing that the individual was not reformed and rehabilitated from his alcohol dependency was the individual’s GGT level that remained above 80.

The individual’s physician, however, testified that she was not in agreement with the DOE consultant-psychiatrist’s opinion concerning the significance of GGT levels as an indicator to show that the individual had resumed consumption of alcohol. She stated,

I don’t think he [the DOE consultant-psychiatrist] has evidence to make that conclusion [that based on the individual’s GGT level remaining above 80, the GGT level confirms that the individual must have resumed consumption of alcohol]. He’s not a hepatologist, he’s a psychiatrist. . . . it is not infrequent that a person’s liver enzymes do not come back down to normal after they’ve been an alcoholic. Our best hope is that they’ll come someplace close to normal.

. . .

the [DOE consultant-] psychiatrist has just stated it is his opinion that the man [the individual] is still drinking and that’s why his liver enzymes are up, but the other medications that we have him on are all metabolized in the liver and medications can cause liver enzyme elevation, even something as simple as Tylenol.

I do not have in any of my records what . . . [the individual’s] Tylenol use was, I know he has back problems, and he could have been using Tylenol for back pain and that could have put those liver enzymes up.

So there are a variety of explanations for the liver enzyme levels not coming back totally to normal. One, he’s really damaged his liver, and I’m delighted that it’s recovered at all; two, some other medication could be causing a slight elevation.

From my personal knowledge as a physician, and I also am not a specialist in livers, I am not a hepatologist, but from my knowledge and from working with people who drink and people who are on a variety of medications, I could not in any way support the psychiatrist’s conclusion here.

Tr. at 231-32. The individual’s physician also testified that environmental toxins in paint, solvents, and chemicals, such as carbon tetrachloride, that the individual may have been exposed to while volunteering at a local theater could have raised his GGT levels. Tr. at 232-33.

The individual’s physician also cited a few other reasons why she believed the individual had not consumed alcohol since June 1997. She stated,

When a person is drinking, their small intestine does not absorb it, and that is necessary for the cells to divide at the right time. . . . we, in medicine, know some of these sneaky things that the patients don’t know, and if we’re suspicious that someone is drinking [alcohol] and we see a high MCV [mean corpuscular volume], or if we suspect this, we’ll ask, “Have you been drinking?” and they won’t have a clue why we ask them, but it’s because their cells are too big.

[The individual’s] . . . cells were too big in May [1997], evidence to me that he probably did have . . . an alcohol problem, but when he stopped drinking [alcohol], that came immediately down to normal. His blood pressure came down to normal very fast - - so fast that . . . he was having difficulty because his blood pressure was too low. We had him on medication for blood pressure and we had to take him off of that.

So the alcoholic-induced high blood pressure was gone, the alcoholic- induced large red cells was [sic] gone, the liver enzymes were coming down very nicely . . . .

Tr. at 234-35.

The individual’s physician and the DOE consultant-psychiatrist also disagreed on the significance of a few other medical issues concerning the individual. These issues concerned the individual’s bilirubin level, his ratio of GGT to alkaline phosphatase, the increase in three of the seven of the individual’s GGT readings since June 1997, and the effect of the prescribed medications, Zoloft and Trazadone (anti-depressants), on the individual’s GGT level. Tr. at 226-58.

The DOE consultant-psychiatrist acknowledged during his testimony that an explanation for the individual’s elevated GGT level is a “difficult and vague issue.” Tr. at 257. For this reason, he and the individual’s physician agreed at the hearing that a qualified hepatologist might be able to shed some light on their disagreements. Tr. at 268, 287. At the hearing, I allowed the individual the opportunity to supplement the record with an opinion from a qualified hepatologist. Tr. at 267-89. Accordingly, the individual’s physician solicited the opinion of a hepatologist, one the DOE consultant-psychiatrist approved of at the hearing, on the issue of whether or not any tests might show if the individual’s present GGT level indicates the individual continued drinking alcohol or abstained from drinking alcohol after June 1997. Tr. at 284.

The individual provided two post hearing submissions from the approved hepatologist. In the hepatologist’s first submission, he states,

[The individual’s] laboratories reveal normal transaminase, bilirubin, alkaline phosphotase [sic] levels and a dramatic drop in Gamma- Glutamyltransferase levels. The latter, however, has remained slightly elevated. This has prompted the suspicion that the patient may still be consuming some alcohol (I understand the random blood alcohol levels have been negative).

Gamma-Glutamyltransferase is a nonspecific enzyme widely distributed in human tissues. Highest levels are found in the kidney, pancreas and liver. The primary localization sites in the liver are the canalicular portion of the hepatocyte membrane and, to a lesser extent, the plasma membrane of epithelial cells lining the bile ducts.

There are a variety of clinical and subclinical conditions that can lead to GGTP levels elevated above the individual subject’s own reference level and the reference range of a healthy population. These include pancreatic disease, cardiac disease, diabetes, renal disease.

In alcoholic liver disease, GGTP is useful for diagnostic confirmation in patients in whom excessive [alcoholic] drinking is suspected but denied and for demonstrating to patients the hepatic effects of their [alcoholic] drinking habits. When [alcoholic] drinking ceases, raised values revert toward normal within 2-3 weeks. However, GGTP elevation may remain if there has been damage to the liver (cirrhosis).

The rapid drop in GGTP in [the individual] . . . around April of 1997 would indicate a substantial if not total decrease in alcohol consumption. These levels continue to trend downward. Given the duration of his alcohol intake, I would be surprised if these were to have become totally normal as I suspect there is a degree of chronic liver injury. I don’t see how this one enzyme can be utilized at this time to either confirm or disprove a drinking problem.

Individual’s July 17, 1998 submission. (2)

The DOE consultant-psychiatrist responded to the hepatologist’s assessment,

In general I agreed with the general discussion and cautious scientific tone shown in the letter.

There is one factual point to which I would claim exception, however. In paragraph 5, line 2 of the letter [the hepatologist] . . . stated, “These levels continue to trend downward.” In the additional information given me before the hearing, in particular the bar graph entitled “[the individual’s] . . . liver enzyme levels,” a break in the general downward trend of the GGT liver enzymes occurred from 10/31/97 when the level was 245 to 12/8/97 when the level was 332, an increase of about 35%. My own studies done during that interview on November 19, 1997 were along the same upward slope and showed a GGT level of 283.

[The hepatologist] . . . indicated that he suspects there is a degree of chronic liver injury and this is certainly possible. This alcoholic cirrhosis occurs in about 10% to 20% of chronic alcoholics in the United States. It generally occurs only after extended very severe levels of drinking [alcohol]. Typical drinking patterns needed to produce Laennec’s cirrhosis would be on the order of over a pint of whiskey or over several quarts of wine per day for five or ten years or more. At the time I evaluated [the individual] . . . I was aware of very heavy levels of [alcohol] drinking only for about the year or so before he was apprehended at work in May of 1997 for having alcohol on his breath. If the diagnosis of Laennec’s cirrhosis is strongly suspected for [the individual] . . . , such patients often have a needle biopsy of the liver to confirm the diagnosis as well as to determine the stage of the disease process, Harrison’s Textbook of Medicine Eighth Edition, pg. 1606. It was my understanding at the end of my presence at the administrative review that such a biopsy was being considered, but evidently [the individual’s physician] . . . and [the individual] . . . decided not to pursue that invasive procedure.

DOE July 27, 1998 submission.

Finally, the approved hepatologist replied to the DOE consultant-psychiatrist’s concerns when he wrote in a letter,

GGT is a sensitive indicator of liver disease but is nonspecific. When the enzyme has been elevated over a period of time, liver biopsy is considered and may be performed to determine the extent of damage and possibly give a clue as to the etiology. Liver biopsy in alcoholic liver disease may give an indication as to the end result of previous alcohol intake but cannot tell us whether or not a person has been drinking recently.

I have also included two additional references that indicate that GGT is not accurate in determining the recent intake of alcohol by an individual.

Individual’s August 3, 1998 submission.

Based on all of the expert medical opinions in the record, I find that the individual has not consumed any alcohol since June of 1997. The only evidence that the individual might have consumed alcohol are the seven GGT readings that have not dropped below 80 since June of 1997. Neither the individual’s physician nor the hepatologist believe that the GGT levels should have dropped below 80 or become “normal” by the time of the hearing, because of the individual’s long history of heavy alcohol consumption and probable resultant liver damage, i.e. cirrhosis. Furthermore, the DOE consultant-psychiatrist “in general” agreed with the hepatologist’s “general discussion and cautious scientific tone.” He also wrote that he was not aware of the individual’s heavy drinking pattern prior to the year before May 1997 that might have caused cirrhosis, which would help explain why the individual’s raised GGT levels persisted even after his abstinence from alcohol. While the DOE consultant- psychiatrist has some concerns regarding the individual’s three increases in GGT levels out of seven GGT readings since June of 1997, I do not believe that alcohol consumption caused these aberrations. The DOE consultant-psychiatrist based his opinion on statistical probabilities, but he was not aware at the time of his initial diagnosis of the individual’s possible exposure to environmental toxins, use of Tylenol and two prescribed medications, that may have contributed to the upward spikes in the individual’s GGT levels. I also believe the hepatologist’s opinion, i.e., that the individual’s GGT levels do not indicate that the individual has resumed consumption of alcohol, is a more qualified opinion on this matter than that of the DOE consultant-psychiatrist. Accordingly, I find that the weight of the evidence supports my belief that the individual has not consumed any alcohol since June 1997.

I believe the individual has undertaken significant efforts to rehabilitate himself from his alcohol dependency. His rigorous and comprehensive treatment program included AA, biofeedback therapy, and qualified professional counseling to combat his disease. All of the individual’s expert witnesses provided corroborating testimony that the individual is following a proper course of rehabilitation for his alcohol dependency. Tr. at 168, 173, 183-84, 203, 214, and 239. The individual also testified that he has changed his lifestyle through his extensive recovery activities and that even his health has improved dramatically since he stopped consuming alcohol. Tr. at 20, 21, and 291. The individual also has the added benefit of a strong support system through his minister, a close friend, and his AA sponsor to keep him on track with his rehabilitation efforts. Tr. at 22-38. Furthermore, the individual has sufficiently demonstrated that he has remained abstinent from alcohol consumption for over one year. Since the DOE consultant-psychiatrist now generally concurs that the individual’s GGT level should not be below 80, and since he also stated that absent his initial concerns about the raised GGT readings that he would consider the individual “reformed and rehabilitated” from alcohol dependence, I find that the individual has adequately demonstrated that he is reformed and rehabilitated from alcohol dependence.

IV. Conclusion

Based on the record in this proceeding, I conclude that allowing the individual to retain access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. I find that the individual has sufficiently mitigated the concerns regarding his alcohol dependence. Specifically, the individual has shown through medical expert testimony that he is reformed and rehabilitated from his alcohol dependence. Accordingly, I recommend that DOE Security restore the individual’s 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. A party must file this request with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and serve 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. The party seeking review must file this statement within 15 calendar days after it files its request for review. The party seeking review must also 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).

Leonard M. Tao

Hearing Officer

Office of Hearings and Appeals

Date: August 31, 1998

(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. I will refer to such authorization variously in this Opinion as access authorization or as a security clearance.

(2)The hepatologist referred to GGT and GGTP synonymously.

critj