Case No. VSO-0417, 28 DOE ¶ 82,798 (H.O. Goering May 21, 2001)

Case No. VSO-0417, 28 DOE ¶ 82,798 (H.O. Goering May 21, 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.

May 21, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: November 17, 2000

Case Number: VSO-0417

This Opinion concerns the eligibility of XXXXX (the individual) to hold an access authorization(1) 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." The individual’s access authorization was suspended by the Manager of a Department of Energy Operations Office (DOE) pursuant to the provisions of Part 710. For the reasons stated below, I conclude that restoring the individual’s 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(a).

I. Background

The individual is an employee of a contractor at a DOE facility. He has been employed at the facility since 1968, when he first was granted a security clearance. Transcript of March 21, 2001 Personnel Security Hearing (Tr.) at 16, 231. Periodic, routine reinvestigations of the individual’s suitability for clearance conducted in 1973, 1978, 1984, 1991, and 1996 revealed no derogatory information.

The individual has also been included in the DOE’s Personnel Assurance Program (PAP), a safety program that requires its participants to submit to annual physical examinations, blood tests, and psychiatric examinations. The results of the periodic blood tests are screened for various values, one of which is Mean Corpuscular Volume (MCV). DOE Exhibit 3-6 at 32A. Elevated MCV has been associated with excessive alcohol consumption. DOE Exhibit 3-5A at 10. A blood test of the individual in late 1999 indicated an elevated MCV level (103 femtoliters compared to a normal range of 76-96 fL) and as a result, a panel of PAP officials, including medical professionals (the PAP panel), convened a “Potentially Disqualifying Information Meeting” with the individual on December 2, 1999. DOE Exhibit 3-1. The report of that meeting indicates that the individual reported drinking one pint of vodka per week, and that the panel recommended that the individual discontinue use of alcohol so that his MCV level could be checked again eight weeks later. Id. After a subsequent test indicated no change in MCV, the individual met with the panel on February 18, 2000. DOE Exhibit 3-2. According to the record of that meeting, the individual reported drinking two beers per day. Id. The panel again recommended that the individual “stop drinking alcohol in any form,” and also recommended his “immediate temporary suspension from the PAP until he demonstrates evidence that he is controlling his alcohol consumption.” Id.

The above events led the DOE to conduct a Personnel Security Interview (PSI) with the individual on April 26, 2000. See DOE Exhibit 5-1. Because the derogatory information remained unresolved after that PSI, the DOE requested that the individual be interviewed by a licensed psychologist (DOE psychologist). The DOE psychologist interviewed the individual on July 6, 2000, and thereafter issued a report to the DOE. See DOE Exhibit 3-4. The DOE ultimately determined that the derogatory information concerning the individual created a substantial doubt about his eligibility for an access authorization, and that the doubt could not be resolved in a manner favorable to the individual. Accordingly, the DOE suspended the individual’s access authorization, and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter to the individual. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of the derogatory information and informed the individual that he was entitled to a hearing before a Hearing Officer regarding his eligibility for access authorization. The individual requested a hearing, and the DOE forwarded the individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter.

Prior to the hearing, counsel for both the individual and the DOE submitted exhibits. Testifying at the hearing were a DOE personnel security specialist, the DOE psychologist, a medical doctor who was a member of the PAP panel (the PAP doctor), a counselor affiliated with a DOE Employee Assistance Program (the EAP counselor), two of the individual’s supervisors, four of the individual’s coworkers and a former coworker, the individual, and his wife.

II. Analysis

As indicated above, the Notification Letter issued to the individual included a statement of the derogatory information in the possession of the DOE that created a substantial doubt regarding the individual’s eligibility for access authorization. In the Notification Letter, the DOE characterized this information as indicating that the individual

is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychologist as alcohol dependent or as suffering from alcohol abuse. His alcoholism is an illness or mental condition which in the opinion of a board-certified psychologist causes, or may cause, a significant defect in the [individual’s] judgment or reliability . . . .

DOE Exhibit 2-13 at 3-4 (citing 10 C.F.R. § 710.8(h), (j)).

Before discussing in detail the information presented by the DOE, I note that it is not unusual in a personnel security case before the OHA to consider issues related to an individual’s use of alcohol. Two aspects of the present case, however, are somewhat unusual and worth noting at the outset to provide some context for the discussion that follows. First, conspicuously absent from the record in the present case are any reports of negative incidents in the individual’s past, such as personal difficulties or arrests for Driving While Intoxicated or Public Drunkenness, attributable to his use of alcohol. The initial catalyst for the suspension of the individual’s clearance, as mentioned above, was the elevated MCV detected in tests of the individual’s blood. Second, the ultimate decision to suspend the individual’s clearance relies on, as set forth in the Notification Letter, the opinion of the DOE psychologist, who does not conclude that the individual has been or is a user of alcohol habitually to excess, or that he suffers from alcohol abuse, but rather that the individual suffers from alcohol dependence. Tr. at 80, 258. And this conclusion appears ultimately to be based not so much on the individual’s pattern of alcohol use, as it is upon the individual’s reaction (or lack thereof) to his elevated MCV level. The individual has been and continues to believe that he does not have an alcohol problem, and he cites the opinion of his own endocrinologist, who is aware of the individual’s elevated MCV, and who has treated the individual for nine years. Individual’s Exhibit BX-29 (affidavit of endocrinologist); Tr. at 220.

A. The Opinion of the DOE Psychologist

The DOE psychologist’s July 6, 2000 evaluation of the individual lasted approximated eight hours, beginning with a “structured clinical interview, [which] can take from an hour to two hours.”

In addition to that, I give a number of personality instruments, give an MMPI. In this case I gave an alcohol use inventory, gave a Millon Clinical Multiaxial Inventory. I gave a Projective, which is a kind of a sentence completion test. And in essence, I combine all of that information in the form of a report and try to summarize and compile and identify patterns, look at trends, look at incidents, situations that are significant, indicative of any kind of a difficulty, and I compare that to the questions, and I try to answer the questions that the Department submits.

Tr. at 53.

In response to the question, “Does [the individual] have an illness or mental condition which causes, or may cause, a significant defect in judgment or reliability?” the DOE psychologist responded that the individual’s “subjective assessment regarding his association with alcohol appears to be inaccurate. Poor introspective analysis regarding his dependence on alcohol is the only significant defect that is apparent. He does not reflect any other psychopathological condition that would impair his judgment.” Id. at 8.

In response to the question from the DOE, “Is [the individual] a user of alcohol habitually to excess or is he alcohol dependent or suffering from alcohol abuse?” the psychologist responded that the individual’s “history--most of which is by his own report--includes a picture of alcohol usage that serves as a ?relaxer’ for him after work. He acknowledges work to be more tension-producing than in the past. This pattern of self-medication has been habitual and suggests a dependent pattern.” Individual’s Exhibit BX-27 at 7.

The DOE psychologist cited criteria for Alcohol Dependence found in the Diagnostic and Statistical Manual of Mental Disorder, Fourth Edition (DSM-IV). The DSM-IV lists seven criteria for substance dependence, and defines substance dependence as a “maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of [the seven criteria], occurring at any time in the same 12-month period.” DSM-IV at 197. The DOE psychologist testified as to why he concluded that the individual met three of the criteria.

(1)“[T]here was a persistent desire or unsuccessful effort to cut down or control substance use. That would be borne out by the fact that there was -- there were directives given to him [by PAP officials] to abstain, and yet that abstention did not occur.”

(2)“Important occupational activities have been given up or reduced because of substance use, I mean, the fact that his [PAP] access was limited and restricted would seem to me to be an indication of an occupational activity that has been given up. I mean, his occupational freedom has been restructured, and that based on alcohol use. Yet there was still continued use.”

(3)“And the substance use has continued despite knowledge of having a persistent or recurrent physical problem, and that is identified by the lab reports that [PAP officials] stated were high, abnormally high and consistently abnormally high. . . . [T]he MCV level was the level that was chronically high . . . .”

Tr. at 61. The DOE psychologist’s report concluded that the “current limited evaluation data point to” a DSM-IV diagnosis of “Alcohol dependence, without physiological dependence.” Individual’s Exhibit BX-27 at 8.

While the DOE psychologist’s conclusions appear to reasonably follow from his observations of the individual, the opinion of the individual’s endocrinologist casts significant doubt on certain of the psychologist’s observations, particularly those related to the individual’s own opinion that he does not have an alcohol problem. Because of this, and because of the lack of agreement from several other experts with the diagnosis of the DOE psychologist, as discussed below, I do not believe that the individual is either alcohol dependent or suffers from a condition that causes, or may cause, a significant defect in the individual’s judgment or reliability. Moreover, I do not find that the individual is or has been a user of alcohol habitually to excess.

B.Whether the Individual Suffers from a Condition that Causes, or May Cause, a Significant Defect in Judgment or Reliability

The sole basis for the DOE psychologist’s opinion that the individual’s condition “causes, or may cause, a significant defect in judgment or reliability” was his observation that the individual’s “subjective assessment regarding his association with alcohol appears to be inaccurate” and that this inaccurate assessment demonstrates “[p]oor introspective analysis regarding his dependence on alcohol . . .” Id. However, the individual testified that his endocrinologist has never been of the opinion that the individual has a problem with alcohol. “I have to go to them every quarter, and I've been seeing him for years every quarter, and he knows my medical situation better than anybody. And he would have stated that I had a problem.” Tr. at 240-41.

At the end of the hearing, I requested that the individual submit a statement from his endocrinologist corroborating the individual’s account of the doctor’s opinion. After the hearing, the individual submitted a sworn affidavit from the doctor, a portion of which is quoted below:

. . . I am a medical doctor licensed to practice medicine . . . . I am an endocrinologist.

I have seen [the individual] as my patient for several years. One of the functions that I perform with [the individual] is the monitoring of his blood work. I am aware that his MCV levels have historically been at, or slightly above, the upper end of the recommended range for MCV levels. I am also aware of numerous liver enzyme tests which have been performed and have remained normal through the years.

. . . .

4.The MCV level is not always a sign of alcohol abuse, as it may be affected by other factors.

5.It is my experience as a medical doctor that people can have elevated MCV levels without any consumption of alcoholic beverages. Through my years of treating [the individual], I have never had any reason to believe that his MCV blood test was a sufficient indicator of an alcohol problem with [the individual].

6.If I suspected that [the individual] had an alcohol problem, I would not hesitate to recommend that he seek help for any possible problem. Had I recommended some type of treatment, I feel [the individual] would have been cooperative with such suggestions. However, I have never had any reason to believe that such a problem exists with regards to [the individual].

Individual’s Exhibit BX-29.

Because the individual’s doctor did not testify at the hearing in this matter, where he would have been subject to cross-examination, I attach relatively less weight to his ultimate opinion that the individual does not have an alcohol problem. However, I do find the affidavit sufficiently corroborates the individual’s description of the opinion his own doctor conveyed to him. Because the individual’s opinion that he does not have an alcohol problem essentially reflects the opinion of his doctor, I do not see the basis for describing the individual’s opinion as a “subjective assessment” that demonstrates “poor introspective analysis regarding his dependence . . .” Since the DOE psychologist’s observation to this effect is the sole basis for his opinion that the individual’s condition “causes, or may cause, a significant defect in judgment or reliability,” I find that opinion lacks a sufficient factual basis.

C.Whether the Individual Suffers from Alcohol Dependence

Among what the DOE psychologist described as “limited evaluation data point[ing] to” a diagnosis of Alcohol Dependence was the presence of three of the seven DSM-IV criteria for substance dependence. As noted above, the DSM-IV defines substance dependence as not only a “maladaptive pattern of substance use,” but one that is “manifested by three (or more) of” seven listed criteria. DSM-IV at 197.

In the opinion of the DOE psychologist, the individual met three of the criteria based upon the MCV levels recorded by PAP officials, the individual’s reaction to the recommendations of PAP officials that he discontinue the use of alcohol, and the decision by PAP officials to suspend the individual from the PAP. It is helpful to view these events, all of which occurred in a three-0month period from December 1999 to February 2000, against the backdrop of the individual’s o.ngoing relationship with his endocrinologist and that doctor’s expressed opinion.

In late 1999, the individual’s MCV level was 103, which “triggered” the first meeting with PAP officials on December 2, 1999. Tr. at 155. At the time of the meeting, the individual did not believe he had a problem with alcohol, Tr. at 237, an opinion that was in accord with that of his endocrinologist, who has been monitoring the individual’s blood work for several years. Individual’s Exhibit BX-29. The PAP officials recommended that the individual discontinue his use of alcohol and have his MCV levels checked again eight weeks later. Though the individual testified credibly at the hearing that he had reduced his alcohol consumption between that meeting and a second meeting on February 18, 2000, he freely admitted at that second meeting and at the hearing that he had not completely abstained from drinking. Tr. at 237-38. The individual also testified, again credibly and with corroboration from his wife, that after the February 18 meeting, at which PAP officials decided to suspend the individual from the PAP, he consumed alcohol only on one day in March 2000, and none since. Tr. at 222, 238.

The individual’s suspension from PAP certainly provides support for the DOE psychologist’s statement in his written evaluation that, “Important occupational activities have been given up or reduced because of substance use.” Individual’s Exhibit BX-27 at 8. It was also not unreasonable to conclude, as did the DOE psychologist, that a “persistent desire or unsuccessful efforts to cut down or control substance use has been seen.” Id. Assuming that the individual made an effort to completely abstain from using alcohol after the December 1999 meeting, that effort was in fact unsuccessful, though the individual has testified credibly that he has successfully abstained since March 2000.

I note, however, conspicuous weaknesses in the basis for the third criterion noted by the DOE psychologist, that the “substance use has continued despite knowledge of having a persistent or recurrent physical problem that is likely to have been caused or exacerbated by the substance.” Id. The physical condition, as described by the DOE psychologist, was the individual’s “consistently high” MCV level. Tr. at 61. Admittedly, the fact that the individual may have chosen to rely on the opinion of his endocrinologist rather than PAP officials when they recommended he abstain from alcohol may be a reasonable basis for the first two criteria cited by the DOE psychologist, since the individual should have known that by not immediately abstaining, his was putting his participation in PAP at risk. However, there is no evidence that PAP officials ever advised the individual that his MCV level posed any health problem, i.e. that it was anything other than a blood test result relied upon to estimate an individual’s alcohol consumption. Thus, given the opinion of his endocrinologist that his MCV level was not “a sufficient indicator of an alcohol problem,” Individual’s Exhibit BX-29 at 1, I fail to see how one could ascribe to the individual, then or now, “knowledge of having a persistent or recurrent physical problem that is likely to have been caused or exacerbated by” the use of alcohol. Apart from whether the endocrinologist’s opinion is objectively accurate, the individual’s decisions regarding his use of alcohol during this period were certainly reasonable in light of the opinion of his doctor, with whom the individual has a continuing doctor-patient relationship. And those decisions were definitely not taken against the advice of his doctor, who described the individual as “a very compliant patient” who “has performed each and every request that I have given him.” Id. at 2. In this critical respect, the factual findings underlying the DOE psychologist’s opinion appear to me to be inaccurate.(2)

I consider, along with the opinion of the DOE psychologist, the opinion of an EAP counselor who has met in sessions with the individual at least once per month since the summer of 2000. The EAP counselor testified that there was no “conclusive evidence to . . . completely rule out substance dependence or rule in substance dependence.” Tr. at 95. This inconclusive opinion is not particularly helpful in evaluating the opinion of the DOE psychologist, since each used different diagnostic tools, none of which appear to be particularly unreasonable or unorthodox. Yet the opinion certainly does not lend any independent support to that of the DOE psychologist.

In addition, the PAP panel (including a psychologist and a medical doctor) that met with the individual in December 1999 and February 2000 concluded that, while the individual met criteria for alcohol use disorder, “[t]here is a definition of alcohol dependence in the DSM-IV, and we didn't think that he met that criteria.” Tr. at 144 (testimony of medical doctor). The doctor continued, “Alcohol use disorder simply means they're drinking more alcohol than their body can reasonably handle without some changes. And it didn't suggest to us that his condition was so bad that he might need professional help. We thought that he could probably quit without that if he wanted to.” Id. at 143.

Finally, there is the opinion of the individual’s endocrinologist, who has seen the individual on a regular basis for the past nine years. Adding weight to his opinion that the individual does not have an alcohol problem is the relatively long-term relationship between doctor and patient and the doctor’s awareness of the condition (elevated MCV) that originally caught the attention of PAP officials. Though I would have preferred to have heard live testimony from the endocrinologist, this opinion obviously cannot be ignored.

On balance, taking into account both the weaknesses in certain of the assumptions of the DOE psychologist and the lack of agreement with his diagnosis from other experts, I am more persuaded by the opinion of the other experts that the individual does not suffer from Alcohol Dependence.

D. Whether the Individual Has Been, or Is, a User of Alcohol Habitually to Excess

The most obvious security concern generally raised by the use of alcohol is a function of the known intoxicating effect of the drug. “Because the use of alcohol at the very least has the potential to impair a user’s judgment and reliability, individuals who use alcohol to excess may be susceptible to being coerced or exploited to reveal classified matters. These security concerns are indeed important and have been recognized by a number of Hearing Officers in similar cases.” Personnel Security Review, Case No. VSA-0281, 27 DOE ¶ 83,030 at 86,644 (2000).

Thus, the Part 710 regulations describe as derogatory information that an individual has “[b]een, or is, a user of alcohol habitually to excess . . . .” 10 C.F.R. § 710.8(j). With respect to such a finding under Criterion J, there is no requirement of a diagnosis by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist. At the same time, there is nothing in the regulations that would preclude giving due weight to the expressed opinion of an expert on this issue, such as that of a medical expert or a personnel security specialist.

In the present case, there is no evidence that the individual drinks habitually to excess, or even that he occasionally drinks to excess. Indeed, the DOE psychologist testified as follows as to the effect of alcohol on the individual:

Q.Okay. Is there any evidence that he drank, in his history any evidence that he drank to intoxication that you know of[?]

A.Not that I know of.

Q.Let's assume that he has, that he continues to be, under your diagnosis, alcohol dependent, continues the pattern of drinking -- and let's say -- assume he continues the pattern of drinking that he exhibited throughout his life, that level, is that the kind of level that leads him to be intoxicated, as far you can tell?

A.Not intoxicated, no.

. . . .

Q.Okay, do you have any reason to believe that his alcohol use directly has ever impaired his judgment . . . or reliability?

A.No.

Tr. at 263-64. Although, as noted above, the DOE psychologist concluded that the individual suffered from alcohol dependence, the psychologist did not find that he was a user of alcohol habitually to excess. Tr. at 80, 258. And while PAP officials reached a diagnosis of alcohol use disorder, the testimony of the medical doctor who served on the PAP panel confirmed that the diagnosis was based upon presumed physiological (MCV level), rather than psychological, effects on the individual. Tr. at 156. Considering the lack even of allegations that use of alcohol has ever affected the individual’s judgment or reliability, and the noted absence of any negative alcohol-related legal or personal events in the individual’s history, I do not find that the individual has been, or is, a user of alcohol habitually to excess.

III. Conclusion

For the above-stated reasons, “after consideration of all the relevant information, favorable and unfavorable,” I conclude that restoring the individual’s “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), 710.27(a).

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 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 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Steven J. Goering

Hearing Officer

Office of Hearings and Appeals

Date: May 21, 2001

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

(2) This is not to say that an individual cannot be accurately diagnosed by a competent professional without meeting a minimum number of DSM-IV criteria for a particular disorder. However, where an expert explicitly relies on certain criteria, the factual basis (or lack thereof) for a given criterion must be taken into account in my determination of the ultimate evidentiary weight I will give to that opinion, e.g., vis-a-vis the conflicting opinions of other experts.