Case No. VSO-0415, 28 DOE ¶ 82,806 (H.O. Lazarus July 9, 2001)

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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.

July 9, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: November 7, 2000

Case Number: VSO-0415

This Opinion considers the eligibility of XXXXXXXXX (hereinafter referred to as "the individual") to hold a level "Q" 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." As explained below, the Department of Energy (DOE) refused to grant the individual an access authorization based on information concerning his use of alcohol. For the reasons detailed below, I recommend that the individual be granted an access authorization.

I. PROCEDURAL BACKGROUND

This matter arose when the individual first applied for an access authorization from DOE. On October 4, 2000, DOE sent the individual a Notification Letter which indicated that the agency had become aware of information that created a substantial doubt concerning the individual’s eligibility for access authorization under 10 C.F.R. § 710.8 (j) (Criterion J).(1)

On October 26, 2000, counsel for the individual responded to the Notification Letter and requested a hearing. On March 7, 2001, a hearing was held before the undersigned Hearing Officer. At the hearing, the agency presented the testimony of a DOE security specialist, a contractor employee who worked with the individual, and the expert testimony of a DOE consultant-psychiatrist. Counsel for the individual presented the testimony of the individual, the expert testimony of the individual’s psychologist, the individual’s former supervisor, and his girlfriend.

II. FINDINGS OF FACT

In this case, the experts disagree about whether the individual should be diagnosed with Alcohol Abuse and is need of rehabilitation. Using his clinical judgment, the DOE consultant-psychiatrist diagnosed the individual as suffering from Alcohol Abuse. In contrast, based on the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) and the recently published text revisions made to the DSM- IV (referred to as the DSM-IV-TR), the individual’s psychologist concluded that the individual should not be diagnosed as suffering from Alcohol Abuse. For the reasons detailed below, I agree with the opinion expressed by the individual’s psychologist.

A. The Individual’s Background

The individual has had an excellent work record. As a young man, he served in the United States Coast Guard. As a result of this service, the individual received an honorable discharge and a Good Conduct Award that recognized his fidelity, obedience and zeal in serving his country. Joint Factual Stipulation (Stipulation) at ¶¶1-3. Since 1981, the individual has worked for the same employer. At all times relevant to this matter, the individual has received excellent performance evaluations and maintained an excellent attendance record. In addition to his evaluations, the individual has received a substantial amount of recognition for his performance in the workplace. He is regarded as highly competent, reliable, friendly and trustworthy. There is no evidence that anyone in the work place considered the individual to have a problem with the use of alcohol. See e.g. Stipulation at ¶¶23-28; Transcript of Hearing (Transcript) at 10, 19, 26-30, 174-183.

B. The Individual’s Use of Alcohol and his Health

The individual considers himself to be a social drinker. Transcript at 55; Report of Individual’s Psychologist (December 14, 2000). The individual currently drinks six to twelve beers a week during football season, less during the off-season. Typically, the individual will drink most of this amount when is he watching football during the week-ends. See Transcript at 61-62. The individual has not experienced any financial or family problems relating to the use of alcohol. None of the people who were interviewed during the individual’s background investigation expressed the opinion that the individual had a problem with the use of alcohol. Stipulation at ¶¶ 8, 9, 10, and 28.

While in college, the individual drank hard liquor and “passed out” on two occasions. After he left school, the individual stopped drinking hard liquor and there is no evidence that he ever passed out again. See Transcript 76-119; Report of Individual’s Psychologist.(2)

Over the past twenty-five years, the individual has been arrested for three incidents involving the use of alcohol. In 1976, when the individual was 23, he was arrested for shoplifting a “shooter bottle.” As a result of this arrest, the individual was found guilty and placed on probation for one year. See DOE Exhibit 7, Report of DOE Consultant-Psychiatrist (June 27, 2000). In 1987, the individual was arrested for driving under the influence and reckless driving. As a result of this arrest, the individual entered a plea of guilty, paid a fine and attended an alcohol awareness class. In 1995, the individual was arrested for urinating in a trash can outside of a police station. As a result of this arrest, the individual paid a fine and successfully completed a one-year probation. Stipulation at ¶¶ 4,5,6.

For many years, the individual has had liver problems. The individual testified that all of the men in his family have high cholesterol levels and some type of liver abnormality. Transcript at 56. Several years ago, the individual was told by his physician that his liver enzymes, triglyceride level and cholesterol levels were elevated and that his liver “doesn’t handle alcohol well.” DOE Exhibit 7, Report of DOE Consultant-Psychiatrist. In an effort to control his liver enzymes, the individual stopped drinking for over a year. However, when the individual’s enzymes remained elevated after a year of sobriety, the individual decided that it was not necessary to abstain from alcohol. See Transcript at 55-56; 72-74; DOE Exhibit 7, Report of DOE Consultant-Psychiatrist.

On December 8, 2000, the individual’s blood was tested as part of a physical examination conducted by his personal physician. At this time, the individual’s GGTP(3), serum cholesterol and LDL were elevated but his triglycerides, ALT enzyme and BUN/Creatinine levels were within normal limits. See Individual’s Exhibit 41.(4)

C. The Evaluation and Report of the DOE Consultant-Psychiatrist

In June 2000, a DOE consultant-psychiatrist evaluated the individual to determine whether he had problems involving the use of alcohol or was suffering from a mental condition that could cause a significant defect in judgment or reliability. See DOE Exhibit 7, Report of DOE Consultant-Psychiatrist. After he completed his evaluation, the DOE consultant- psychiatrist issued a report which set forth the individual’s background, including his history of alcohol use, (5)noted that the individual had produced a valid clinical Minnesota Multiphasic Personality Inventory-2 (MMPI-2) profile within the normal range, his score on the McAndrews Alcoholism Scale was in the average range, and that the individual’s urine drug screen was negative for alcohol and drugs. Stipulation at ¶11. The DOE consultant-psychiatrist also noted that the results of a blood chemistry panel indicated that the individual had abnormally elevated levels of two liver enzymes -- the GGT and ALT.(6) According to the DOE consultant-psychiatrist “the abnormal elevations in liver enzymes in the pattern noted strongly suggests, but does not prove, that [the individual] continues to use alcohol in amounts excessive enough to cause liver damage.” Id.(7)

Based on information obtained during this evaluation, the DOE consultant-psychiatrist concluded that the individual should be diagnosed under the DSM-IV with Alcohol Abuse (DSM.IV 305.00). Under the DSM-IV, the following criteria are used to determine whether a diagnosis of Substance Abuse (Alcohol) is appropriate:

A. A maladaptive pattern of substance use leading to clinically significant impairment or distress as manifested by one (or more) of the following, occurring within a twelve-month period:

(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school or home (e.g., repeated absences or poor work performance related to substance use; substance related absences, suspensions or expulsions from schools; neglected children or household)

(2) recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)

(3) recurrent substance-related legal problems (e.g., arrests for substance- related disorderly conduct)

(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights)

B. The symptoms have never met the criteria for substance dependence.

The DOE consultant-psychiatrist indicated that the individual should be diagnosed with Alcohol Abuse because his arrests for alcohol-related incidents in 1976, 1987, and 1995 constitute recurrent alcohol-related legal problems. In his report, the DOE consultant- psychiatrist did not address the fact that these arrests did not occur within a 12 month period.(8) The DOE consultant-psychiatrist further indicated that the individual had not been rehabilitated and would require outpatient treatment of moderate intensity for approximately one year to show adequate evidence of rehabilitation and reformation. Id.(9)

D. The Evaluation, Report and Testimony of the Individual’s Psychologist

When the individual learned of the diagnosis of the DOE consultant-psychiatrist, he did not stop drinking alcohol. Instead, because he believed that the DOE consultant-psychiatrist was incorrect, the individual sought a second opinion from a psychologist. Transcript at 66-68. The psychologist consulted by the individual agreed that the DOE consultant-psychiatrist was mistaken and that the individual should not have been diagnosed with Alcohol Abuse or any other mental illness under the DSM- IV. The psychologist also concluded that since the individual “cannot be diagnosed as either an alcohol abuser or an individual addicted to alcohol,” he does not need to be rehabilitated. See Stipulation at ¶¶ 13-21; Report of Individual’s Psychologist (December 14, 2000).

In essence, after evaluating the individual, the psychologist concluded that the individual was a social drinker and psychologically sound. The psychologist based this conclusion on the fact that the individual has never had a psychological or psychiatric difficulty that required treatment. The psychologist also pointed out that the individual has always had a very stable employment history, a good reputation and is very hardworking and intelligent. When questioned about the individual’s elevated liver enzymes at the hearing, the psychologist testified that the individual’s elevated liver enzymes do not necessarily mean that the individual is abusing alcohol because there is at least a 30 percent rate of false positives in tests used to determine GGTP, the individual has a familial history of liver disease, and has experienced liver difficulties for a long period of time. Moreover, the psychologist noted that the individual believed that his liver enzymes levels were not directly related to his alcohol consumption because his liver enzymes remained elevated when he stopped drinking for a year. Report of Individual’s Psychologist (December 14, 2000); Transcript at 76-119.

The psychologist also indicated that his conclusions concerning the individual’s mental health are supported by the individual’s responses to the Substance Abuse Subtle Screening Instrument (SASSI), the Personality Assessment Inventory (PAI) and the Rorschach Projective Test (Rorschach). Based on the SASSI, the psychologist stated that it is very unlikely that the individual is alcohol-dependent or an abuser, and, based on the results of the PAI, there is no evidence of clinical psychopathology and no basis for suggesting that the individual may be experiencing any type of alcohol or substance disorder. The psychologist also indicated that the results of the Rorschach were “ free from signs of any type of thought, mood or perceptual disorder.” Stipulation at ¶¶ 15-19.

The psychologist testified that he believed that the DOE consultant-psychiatrist’s diagnosis of Alcohol Abuse under the DSM-IV based on recurrent alcohol-related legal problems was incorrect because the individual had never been arrested more than one time during any twelve month period. Transcript at 101-102.

E. The Testimony of the DOE Consultant-Psychiatrist

After he heard the testimony of the psychologist at the hearing, the DOE consultant- psychiatrist admitted that he should not have diagnosed the individual with Alcohol Abuse under the DSM-IV based on recurrent alcohol-related legal problems because the individual had never been arrested more than one time during any twelve month period. The DOE consultant-psychiatrist indicated that he was changing the basis for his diagnosis because the recently published DSM-IV-TR clarified the DSM-IV criteria of Substance Abuse by explicitly indicating that substance-related problems must have occurred repeatedly during the same twelve month period for an abuse criterion to be met. Transcript at 129-130.

Although he admitted that the individual has not met the criteria for Alcohol Abuse under the DSM-IV as clarified by the DSM-IV-TR, the DOE consultant-psychiatrist testified that he would continue to diagnose the individual with Alcohol Abuse based upon his clinical judgment and experience because the individual has continued to use alcohol even though he was aware that his use of alcohol was damaging his liver. According to the DOE consultant- psychiatrist, this diagnosis is permissible because the DSM-IV-TR added a new section that permits a practitioner to exercise clinical judgment and make a diagnosis even when the full criteria for the diagnosis have not been met as long as the symptoms that are present are persistent and severe. Transcript at 131-132.(10)

Because the psychologist was not present during the testimony of the DOE consultant- psychiatrist, the psychologist was permitted to review the hearing testimony of the DOE consultant-psychiatrist and submit an affidavit that responds to the new information that was presented.(11) In his post-hearing affidavit, the psychologist indicated that the DSM-IV-TR makes no substantive changes to the DSM-IV Criteria for Substance Abuse and reaffirmed that the individual did not meet any of the criteria for Substance Abuse or Dependence. The psychologist also indicated that he reached this conclusion by using his clinical judgment and experience to conduct and analyze the results of a clinical interview of the individual and administer and evaluate the results of psychological tests. The psychologist also indicated that his conclusion that the individual should not be diagnosed with Alcohol Abuse was entitled to greater weight than the DOE consultant-psychiatrist’s diagnosis of the individual as suffering from Alcohol Abuse because his (the psychologist’s) conclusion was based upon the criteria set forth in the DSM-IV:

Finally, where two professional opinions differ, that is where clinical judgments differ, as has occurred between myself and [the DOE consultant-psychiatrist], it is my belief that the most prudent position is that of reliance upon a literal interpretation of the DSM-IV Criteria for Substance Abuse and Dependency. That being the case, the record is clear that, again, [the individual] did not meet the DSM-IV criteria, and, therefore, under no circumstances can a diagnosis of substance abuse or dependence be applied to [the individual].

III. ANALYSIS

A. The Legal Standard

An administrative review proceeding under Part 710 is designed to protect the national security. It is not a criminal proceeding, which has procedures that are designed to protect an individual from unjust imprisonment. DOE does not have to prove "beyond a reasonable doubt" that an individual has committed a crime or engaged in other inappropriate behavior to justify the revocation of his security clearance. Rather, there is a presumption against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988).

Under Part 710, DOE may suspend an individual’s access authorization "where [derogatory] information is received which raises a question concerning the continued eligibility of an individual for DOE access authorization." 10 C.F.R. §710.10(a). After a question concerning an individual’s eligibility for an access authorization has been raised, the burden shifts to the individual who must support his eligibility for access authorization. See 10 C.F.R. §710.21(b)(6). He must come forward with convincing factual evidence that "the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest." See 10 C.F.R. § 710.27(a).

The individual may also meet this burden by showing the existence of circumstances that would mitigate the security concerns caused by his conduct. Section 710.7(c) contains a list of factors that a Hearing Officer is required to consider in reaching a decision concerning an individual’s eligibility for access authorization. These factors include "the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; 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 potential for pressure, coercion, exploitation, or duress; [and] the likelihood of continuation or recurrence."

Here, I find that the individual has met his burden of proving that the restoration of his access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest." See 10 C.F.R. § 710.27(a). Based upon the report and the testimony of the psychologist, I am convinced that the individual is not suffering from a substance abuse disorder and does not need rehabilitation. As detailed above, the psychologist used his clinical judgment and information obtained from a careful evaluation of the individual to determine that the individual should not be diagnosed with a substance abuse problem or any other mental illness under the criteria set forth in the DSM-IV or the DSM-IV-TR. The psychologist based this conclusion on the results of several psychological tests as well as the fact that the individual has never been treated for a psychological or psychiatric difficulty, has had a very stable employment history, and is very well-regarded by his colleagues.

I accept the opinion expressed by the psychologist that the individual is a social drinker and that his elevated liver enzymes do not necessarily compel the conclusion that an individual is abusing alcohol. See Lewis v. WMATA, 19 F. 3rd 677 (D.C.Cir. 1994)(Court requires expert testimony when information is beyond ken of lay person); Brock v. Merrell Dow Pharmaceuticals,Inc., 874 F. 2d 307 (5th Cir. 1989) (Defendant entitled to JNOV because plaintiff failed to present adequate expert testimony on matter that required expert testimony.) As noted above, the psychologist testified that there is at least a 30 percent rate of false positives in tests used to determine GGTP, the individual has a familial history of liver disease, and has experienced liver difficulties for a long period of time. Moreover, as pointed out by the psychologist, I also find that the individual did not believe that the levels of his liver enzymes were directly related to his alcohol consumption because his liver enzymes remained elevated when he stopped drinking for a year. Transcript at 91-93, 99, 106.

Finally, I believe that the opinion of the individual’s psychologist is entitled to greater weight that the opinion of the DOE consultant-psychiatrist because it is consistent with the criteria set forth in the DSM-IV and explained in the DSM-IV-TR, well-reasoned and supported by substantial evidence. As I am convinced that the individual is not suffering from a substance abuse disorder and does not need rehabilitation, I must recommend that the individual be granted an access authorization. See, e.g. Personnel Security Hearing, Case No. VSO-0308, 27 DOE ¶82,840 (2000).

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the individual may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a statement specifying the issues upon which it seeks review. The other party may file a response to the statement of issues. It must do so within twenty calendar days of receipt of the statement of issues.

All submissions must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, SW, Washington, D.C. 20585-0107. In addition, a party must send a copy of each of its submissions to the other party.

Linda Lazarus

Hearing Officer

Office of Hearings and Appeals

Date: July 9, 2001

(1)Section 710.8 sets forth the principal types of derogatory information that create questions as to an individual’s eligibility for access authorization. Criterion J involves information that an individual has been a "user of alcohol habitually to excess," or has been diagnosed as "alcohol dependent or as suffering from alcohol abuse."

In the Notification Letter issued to the individual, DOE indicated that it was concerned because 1) a DOE consultant-psychiatrist had diagnosed the individual as suffering from Alcohol Abuse under DSM-IV, and also indicated that the individual “is a user habitually to excess,” a current user, and had not been rehabilitated; 2) in 1987 and 1995, the individual had been arrested for incidents involving his use of alcohol; 3) the individual continues to drink six to 12 beers on weekends, becomes intoxicated once per week during the football season, and once per month during the non-football season; and 4) the individual experienced blackouts in his college days. DOE Exhibit 1, Notification Letter.

(2)Although the Notification Letter indicates that DOE had information that the individual experienced “blackouts” when he was in college, based on the testimony of the psychologist, I find that this individual did not blackout, i.e., was unable to recall behaviors while behaving, but simply passed out from drinking too much alcohol. Transcript at 92-93.

(3)The GGTP enzyme is also referred to as the GGT liver enzyme and the gamma GT liver enzyme. See Transcript at 136; Individual’s Exhibit 41.

(4)As detailed below, when the DOE consultant-psychiatrist tested the individual’s blood in June 2000, the individual had normal triglycerides, but his BUN, cholesterol, GGTP and the ALT liver enzymes were elevated.

(5)See Section II, B infra. In addition to the three arrests that have been described previously, the DOE consultant-psychiatrist indicated that the individual might have been arrested for a second alcohol-related shoplifting incident in the 1970's. I find that this arrest, if it occurred, is not relevant to the issue of whether the individual is eligible for an access authorization because the events that would have led to this arrest occurred more than twenty years ago and were not set forth as derogatory information in the Notification Letter.

(6)In his report, the DOE consultant psychiatrist also noted that (1) the individual had a slightly elevated BUN, but this elevation was not significant for purposes of determining whether the individual was abusing alcohol, (2) the individual had a slightly elevated serum cholesterol level that can sometimes be associated with the excessive use of alcohol, but this association is not strong, and (3) the individual had normal triglyceride levels even though these levels had been elevated in the past.

(7)As noted above, in December 2000, when the individual’s blood was tested by his personal physician, the ALT liver enzyme was no longer elevated. See Individual’s Exhibit 41.

(8)In this report, the DOE consultant-psychiatrist also indicated that the individual’s behavior met one of the DSM-IV criteria for “Alcohol Dependence” because he continued to drink excessively despite warnings that his use of alcohol was causing liver damage. However, the DOE consultant-psychiatrist testified that the diagnosis of Alcohol Abuse was not based on the fact that the individual had met a criterion for Alcohol Dependence. See Transcript at 165-168.

(9)The DOE consultant-psychiatrist also determined that the individual was not Alcohol Dependent or suffering from a mental condition that could cause a significant defect in judgment or reliability. See DOE Exhibit 7, Report of DOE Consultant-Psychiatrist. At the hearing, the DOE consultant-psychiatrist also testified that he did not believe it was appropriate to use the DOE criteria and diagnose the individual as a person who “habitually uses alcohol to excess.” Transcript at 167-168.

(10)A similar section is contained in the DSM-IV.

(11)Because the individual was not aware until the hearing that the DOE consultant-psychiatrist had changed the basis for his diagnosis, the record was re-opened to permit the psychologist to review the hearing transcript and respond to the testimony that was presented by the DOE consultant-psychiatrist at the hearing.