PSH-11-0025

* 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
XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the matter of Personnel Security Hearing )
)
Filing Date: November 28, 2011 )
) Case No.: PSH-11-0025
)
___________________________________ )
Issued: March 22, 2012
_______________
Hearing Officer Decision
_______________
Kent S. Woods, Hearing Officer:
This Decision considers the eligibility of XXXXXXX XXXXXXX (hereinafter referred to as “the
individual”) to hold an 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, it is my decision that the individual should not be
granted an access authorization at this time.
I. BACKGROUND
The individual currently is employed by a DOE contractor, and that contractor has requested that
he receive a DOE security clearance. Based on issues contained in the individual’s security file,
the Local Security Office (LSO) conducted a Personnel Security Interview with the individual in
August 2011 (the 2011 PSI, DOE Ex. 8). In September 2011, a DOE-consultant psychologist
(the DOE-consultant Psychologist) evaluated the individual, and memorialized her findings in a
Psychological Evaluation Report (the Report, DOE Ex. 6).
In October 2011, the LSO issued a Notification Letter to the individual, together with a
Summary of Security Concerns (Enclosure 2) setting forth the information that created a
substantial doubt about the individual’s eligibility to hold a DOE security clearance. (DOE Ex. 1).
Specifically, the LSO states that a DOE-consultant Psychologist evaluated the individual and
concluded that he met the Diagnostic and Statistical Manual of Mental Disorders, IVth Edition,
Text Revision (DSM-IV-TR) criteria for Bipolar II Disorder, Recurrent Major Depressive
Episodes with Hypo-manic Episodes. The DOE-consultant Psychologist also concluded that the
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individual’s Bipolar II Disorder is an illness or mental condition which causes or may cause, a
significant defect in judgment or reliability, thereby raising a concern under 10 C.F.R. § 710.8(h)
(Criterion H). Enclosure 2, DOE Ex. 1.
The individual requested a hearing (hereinafter “the hearing”) to respond to the concerns raised in
the Notification Letter. On November 28, 2011, the Office of Hearings and Appeals Director
appointed me the Hearing Officer in this case. At the hearing I convened in this matter, I
received testimony from ten witnesses. The LSO presented the testimony of the DOE-consultant
Psychologist. The individual testified and presented the testimony of his prescribing psychiatrist,
his partner, his stepmother, three friends from his Overeater’s Anonymous Program, a co-worker,
and his supervisor. Discussion at the hearing centered on the individual’s past conduct that
formed the basis for his diagnosis of Bipolar II Disorder, the individual’s past and current
treatment of his condition, and his current functionality and social support.
II. APPLICABLE STANDARDS
A DOE administrative review proceeding under this Part is not a criminal case, in which the
burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this
type of case, we apply a different standard, which is designed to protect national security
interests. A hearing is “for the purpose of affording the individual an opportunity of supporting
his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). The burden is on the
individual to come forward at the hearing with evidence to convince the DOE that granting or
restoring his access authorization “would not endanger the common defense and security and
would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). This standard
reflects a presumption against granting or restoring a security clearance. See Dep’t of Navy v.
Egan, 484 U.S. 518, 531 (1988) (the “clearly consistent with the interests of national security test”
for the granting of security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert.
denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
Under Part 710 certain types of information raise concerns about whether an individual is
eligible for access authorization. Derogatory information includes, but is not limited to, the
information specified in the regulations. 10 C.F.R. § 710.8. Once a security concern exists, the
individual has the burden to bring forward sufficient evidence to resolve the concern. In
considering whether an individual has resolved a security concern, the Hearing Officer considers
various factors, including the nature of the conduct at issue, how frequently it occurred, how
recently it occurred, the absence or presence of reformation or rehabilitation, and the impact of
the foregoing on the relevant security concerns. Id. § 710.7(c). The decision concerning
eligibility is a comprehensive, common-sense judgment based on a consideration of all relevant
information, both favorable and unfavorable. Id. § 710.7(a).
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III. ANALYSIS OF TESTIMONY AND FINDINGS OF FACT
A. The Individual’s Bipolar II Diagnosis Raises a Criterion H Concern
As noted above, in her 2011 Report, the DOE-consultant Psychologist concluded that the
individual met the DSM-IV-TR criteria for Bipolar II Disorder, Recurrent Major Depressive
Episodes with Hypo-manic Episodes. As support for her diagnosis, the DOE-consultant
Psychologist refers to the individual having an angry outburst in the workplace in 2008 that
resulted in his termination from his job. She also refers to a period in 2009-2010 when the
individual reported to his prescribing psychiatrist symptoms that included disorientation, poor
judgment, two “near-miss” car accidents, indecision, detached feelings, and yelling at a co-worker.
These symptoms were resolved when the prescribing psychiatrist changed his medication to
include a drug for bipolar disorder. Report at 3-4, 5-6. At the hearing, the individual testified
that after studying the DOE-consultant Psychologist’s report, he now accepts that this is the
correct diagnosis for his condition. Hearing Transcript (TR) at 11, 110. The individual’s
prescribing psychiatrist also testified that she accepted that DOE-consultant Psychologist’s
diagnosis. TR at 154. I find that the diagnosis of Bipolar II Disorder raises a Criterion H
security concern because it clearly is a mental condition that can “impair judgment, reliability, and
trustworthiness.” Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information, Assistant to the President for National Security Affairs (December 29,
2005) (Adjudicative Guidelines), Guideline I. As the individual does not dispute this diagnosis,
the only remaining issue to be resolved concerning the individual’s Bipolar II Disorder is whether
the Criterion H concerns arising from the diagnosis have been mitigated.
B. Whether the Individual Has Mitigated the Criterion H Concern
At the hearing, the individual asserted that his Bipolar II Disorder currently is well controlled by
medication. He stated that his partner, his supervisor, and several friends are aware of his
condition and are able to contact his prescribing psychiatrist if they become concerned about
changes in his mood or behavior. TR at 11-13. As discussed below, the testimony of the
individual’s partner and friends supported these assertions. The individual’s prescribing
psychiatrist, who sees the individual for thirty minutes approximately every two months to
monitor his medications, also stated that the individual is stable on his current medications, and
that his support network is adequate. TR at 116, 137. However, after hearing the testimony of
the individual and his witnesses, the DOE-consultant Psychologist opined that although the
individual has done a lot of the right things to help stabilize his condition, he was not yet
receiving adequate psychological counseling to lower his risk of a future depressive or hypo-
manic episode. TR at 158, 172.
The DOE does not have a set policy on what mitigates a Criterion H concern. The Hearing
Officer makes a case-by-case determination based on the evidence. Hearing Officers properly
give deference to the expert opinions of psychiatrists, psychologists and other mental health
professionals regarding the mitigation of concerns related to mental conditions. See, e.g.,
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Personnel Security Hearing (Case No. TSO-0564) (2008).1 I applied the Adjudicative
Guidelines and the factors listed in 10 C.F.R. § 710.7(c) to the evidence presented in this
proceeding, and I find that the individual has not yet demonstrated that he is at low risk for future
Bipolar II episodes that could impair his judgment.
Guideline I states that an individual may mitigate a security concern related to psychological
conditions with evidence of the following:
(a) the identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental health
professional;
(c) recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by the U.S. Government that an individual’s previous
condition is under control or in remission, and has a low probability of recurrence or
exacerbation;
(d) the past emotional instability was a temporary condition . . ., the situation has been
resolved, and the individual no longer shows indications of emotional instability; [or]
(e) there is no indication of a current problem.
Adjudicative Guidelines at 13.
Based on his testimony and demeanor at the hearing, I accept the individual’s assertion that he
has fully accepted his diagnosis of Bipolar II Disorder and his need for medication and ongoing
medical treatment. Although the individual admits that he had doubts about the Bipolar II
diagnosis in the past, he contends that he now has arrived at a full acceptance of his condition.
This acceptance was supported by the testimony of the individual’s prescribing psychiatrist, by
the DOE-consultant Psychologist, and by the individual’s partner, supervisor, stepmother, and
two friends, who state that they were informed of the diagnosis by the individual. TR at 15-16,
47, 52, 83, and 90. The testimony of his partner, his step mother, his friends, his supervisor and
his co-worker confirm that, aside from the 2008 and 2010 incidents described above, the
individual has led a normal, stable life and interacted in a positive way with his family, friends
and co-workers in recent years. Furthermore, I am persuaded by the testimony of the individual,
his partner, and the prescribing psychiatrist that the individual is sincerely committed to a
regulated life-style which will promote the individual’s good health in the future. TR at 131-133.
With regard to the effective treatment of any future episodes, I find that the individual has
corroborated his assertion that he consistently has acted in accordance with the guidance of his
1 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision
in the search engine located at http://www.oha.doe.gov/search.htm.
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medical professionals and his partner in seeking appropriate treatment, and that it is likely that he
will continue to do so. In particular, the prescribing psychiatrist’s clinical progress notes indicate
that the individual has been cooperative in identifying his moods and stressors so that he can
receive appropriate medication. See Progress Notes, April 2009 to Present, attached to
individual’s January 13, 2012 letter.
With respect to Guideline I(a), the DOE-consultant Psychologist and the individual’s prescribing
psychiatrist agree that the individual can significantly reduce the risk of a Bipolar II episode
with medication. TR at 135-136, 166. Based on the testimony of the individual, his partner, and
his prescribing psychiatrist, I find that the individual complies with his treatment plan, and that
he has been stable since September 2010. TR at 113, 25, 148. However, both experts
acknowledge that medication alone does not entirely eliminate the risk of a Bipolar II episode,
and that the individual must engage in other therapeutic practices and maintain an effective
support network in order to reduce the occurrence or severity of an episode. TR at 138, 157-158,
168.
In this regard, I find that the individual has not yet satisfied conditions Guideline I(b) and (c).
The individual’s prescribing psychiatrist and the DOE-consultant psychologist offered conflicting
prognoses. The individual’s prescribing psychiatrist testified that the individual is stable and at
low risk for a future episode. She also testified that his current support network is adequate to
identify and treat an oncoming episode before it fully develops. TR at 151,153.
The DOE-consultant psychologist testified that with his current treatment regimen, the individual
remains at moderate risk for developing significant symptoms in the future. TR at 158. She
opined that the individual needs to establish a therapeutic relationship initially involving weekly
meetings with a licensed counselor. She stated that feedback from a counselor would assist the
individual in evaluating his moods and behavior, and increase his understanding of his emotional
patterns, thereby safeguarding against a future Bipolar II episode. TR at 164-166. While the
individual’s prescribing psychiatrist maintained that the individual was currently at low risk for
an episode, she testified that she has recommended to the individual that he see a counselor
because psychotherapy had helped him in the past, and because it would increase the individual’s
stability by helping to develop insights to reduce emotional stress and identify triggers for his
mood changes. TR at 138-139.
Based on this testimony, I conclude that the DOE-consultant Psychologist’s concerns about the
effectiveness of the individual’s current treatment regimen are valid. As noted above, the
individual was fired in 2008 after displaying anger in the workplace. The individual
acknowledges that he experienced significant emotional stress in his subsequent position in 2009
and 2010, and that in the summer of 2010 he had two near-miss automobile accidents due to
problems with his reaction time while driving. In light of these significant incidents in the last
few years, I agree with the DOE-consultant Psychologist that the individual requires the insight
and monitoring of a professional counselor in order to minimize the risk for a future Bipolar II
episode.2 For these reasons, I also find that the individual has not satisfied Guideline I(d) and
2 With regard to Guideline I(d), Bipolar II Disorder is not a temporary condition; the DOE-consultant Psychologist
testified that it recurs. TR at 155.
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I(e). Based on the DOE-consultant psychologist’s testimony that the individual has a significant
risk of suffering further symptoms, I find that a problem exists.
At the hearing, the individual indicated a willingness to enter a counseling relationship, and
stated that he was searching for an appropriate counselor. TR at 115-117. Following the
hearing, the individual submitted a letter from a clinical psychologist indicating that he had met
with the individual for an initial psychotherapy evaluation, and that they had arranged to
continue therapy on a weekly basis. See February 2, 2012, e-mail from the individual attaching
February 1, 2012, letter from the clinical psychologist.
The DOE-consultant Psychologist’s testimony indicated that once the individual establishes a
psychotherapeutic relationship with a qualified, experienced professional, initially involving
weekly meetings, he will be at a lower risk for suffering a future Bipolar II episode. TR at 171-
172. Expert testimony before this office indicates that 12 sessions with a therapist or counselor
generally are considered the minimum for achieving effective therapeutic results. See Personnel
Security Hearing (Case No. PSH-11-0021) (2012). Prior to the closing of the record in this
proceeding, the individual was able to document only his initial meeting with his new
psychologist. Under these circumstances, I find that the individual has not yet established that he
and his psychologist have developed a psychotherapeutic relationship that will be effective in
meeting the recommendations of the DOE-consultant Psychologist and minimizing his risk of
developing future Bipolar II Disorder symptoms. Accordingly, I find that the individual has not
shown adequate evidence of rehabilitation and reformation from his Bipolar II Disorder at this
time.
IV. CONCLUSION
For the reasons set forth above, I find that the individual was properly found to be suffering from
Bipolar II Disorder, an illness or mental condition which causes or may cause, a significant
defect in judgment or reliability, thereby raising a concern under Criterion H. Further, I find that
this derogatory information under Criterion H has not yet been mitigated by evidence of
rehabilitation and reformation. Accordingly, after considering all of the relevant information,
favorable or unfavorable, in a comprehensive and common-sense manner, I conclude that the
individual has not demonstrated that granting him an access authorization would not endanger
the common defense and would be clearly consistent with the national interest. The individual or
the DOE may seek review of this Decision by an Appeal Panel under the regulation set forth at
10 C.F.R. § 710.28.
Kent S. Woods
Hearing Officer
Office of Hearings and Appeals
Date: March 22, 2012