PSH-11-0028

* 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 30, 2011 )
) Case No.: PSH-11-0028
_______________________________________ )
Issued: February 29, 2012
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Hearing Officer Decision
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Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX, (“the Individual”) to hold a
Department of Energy (DOE) access authorization.1 This Decision will consider whether, based
on the testimony and other evidence presented in this proceeding, the Individual’s suspended
DOE access authorization should be restored. For the reasons detailed below, I find that the
DOE should not restore the Individual’s access authorization at this time.
I. BACKGROUND
The Individual is employed by a DOE contractor and has held a DOE access authorization since
2006. DOE Ex. 10. During a routine reinvestigation in connection with the Individual’s security
clearance, the Local Security Office (LSO) received potentially derogatory information, which
prompted the LSO to refer the Individual to a DOE consultant-psychiatrist (“the DOE
Psychiatrist”) for an evaluation. The DOE Psychiatrist evaluated the Individual in September
2011 and issued a report. DOE Ex. 11. After reviewing the Individual’s personnel security file,
the LSO informed the Individual in an October 2011 Notification Letter that there existed
derogatory information that raised security concerns under 10 C.F.R. § 710.8 (h) (Criterion H).
See Notification Letter, October 14, 2011. The Notification Letter also informed the Individual
that she was entitled to a hearing before a Hearing Officer in order to resolve the security
concerns. Id.
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded her request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the DOE counsel introduced 16 exhibits into the record and presented the testimony of one
witness, the DOE Psychiatrist. DOE Exs. 1-16. The Individual, represented by counsel,
presented her own testimony, as well as the testimony of her significant other, her supervisor,
three co-workers, and a forensic psychiatrist (“the Individual’s Psychiatrist”), who evaluated the
Individual for the purposes of providing expert testimony in this proceeding. The Individual also
tendered 20 exhibits. Indiv. Exs. A-T. See Transcript of Hearing, Case No. PSH1-11-0028
(cited herein as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including the nature of the conduct at issue, the frequency or recency
of the conduct, the absence or presence of reformation or rehabilitation, and the impact of the
foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c). In considering these factors,
the Hearing Officer also consults adjudicative guidelines that set forth a more comprehensive
listing of relevant factors. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (issued on December 29, 2005 by the Assistant to the President
for National Security Affairs, The White House) (the Adjudicative Guidelines).
Ultimately, the decision concerning eligibility is a comprehensive, common-sense judgment
based on a consideration of all relevant information, favorable and unfavorable. 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find 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.” 10 C.F.R. § 710.27(a).
“Any doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988) (the
“clearly consistent with the interests of national security” test indicates that “security clearance
determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT AND ANALYSIS
A. Whether the LSO Properly Invoked Criterion H
1. The Individual’s Mental Health Condition and Related Facts
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The pertinent facts in this case are as follows. The Individual met and married her first husband
in 1991 and they had one son together. DOE Ex. 11 at 3. Shortly after her son’s birth, the
Individual sought counseling due to problems in her marriage and was ultimately prescribed an
antidepressant medication, Prozac. Id. at 3-4. The Individual participated in counseling
periodically from 1991 to 1995. Id. The Individual and her first husband divorced in 1996, after
which the Individual’s depression increased and she experienced suicidal thoughts. Id. at 4. In
1997, the Individual’s primary care physician diagnosed her with depression and again
prescribed Prozac, which the Individual continued taking until approximately 2005. Id. at 4-5.
In mid-2005, the Individual’s physician diagnosed her with chronic depression, discontinued the
Individual’s use of Prozac, and prescribed another antidepressant, Effexor. Id. at 5.
The Individual moved to another state in mid-2005. She met her second husband in mid-2006
and they married six months later, despite having a very turbulent relationship. Id. at 6. A few
months later, the Individual’s teenaged son moved out of state permanently to live with his
father. Id. The Individual’s depression increased and she sought treatment from a psychiatrist
(“Treating Psychiatrist 1”), who increased the dosage of Individual’s Effexor prescription. Id.
Shortly thereafter, the Individual divorced her second husband and moved back to her home
state. Id. In August 2007, the Individual met with her physician and expressed concerns
regarding the effectiveness of the Effexor. Id. The physician discontinued the Effexor and
replaced it with another antidepressant, Lexapro, as well as a sleeping aid, Trazodone. Id. The
Individual did not tolerate this change well; she experienced withdrawal symptoms and suicidal
thoughts. Id. at 7. Within days, the Individual attempted suicide by taking an overdose of
Trazodone. Id. The Individual was briefly hospitalized following her suicide attempt and, upon
her release, began attending an intensive outpatient treatment program and meeting with a
psychiatrist (“Treating Psychiatrist 2”) as part of the program. Treating Psychiatrist 2 diagnosed
the Individual with Bipolar Disorder, discontinued the Individual’s Lexapro and Trazodone, and
prescribed three mood stabilizers – Lamictal, Lithium, and Topamax. Id. at 8-9. The Individual
met with Treating Psychiatrist 2 daily during the one-week treatment program, and then once or
twice for medications management until early 2008. Id. at 9.
Over the next two years, the Individual moved between her home state and her second husband’s
home state several times, which resulted in her switching back and forth between the two treating
psychiatrists. Consequently, the Individual’s diagnosis and medications changed with each
move. For example, in September 2007, one month after her suicide attempt, the Individual
restarted treatment with Treating Psychiatrist 1, who disagreed with the Bipolar Disorder
diagnosis by Treating Psychiatrist 2 and adjusted the Individual’s medications by discontinuing
the mood stabilizer Lamictal and prescribing to the Individual a new antidepressant, Celexa. Id.
One month later, she moved again and saw Treating Psychiatrist 2, who disagreed with Treating
Psychiatrist 1’s diagnosis and adjusted the Individual’s medication regimen by discontinuing the
Celexa and prescribing a different antidepressant, Wellbutrin. Id. at 10. In February 2008, after
the Individual moved again in order to attempt to reconcile with her second husband, she once
again sought treatment from Treating Psychiatrist 1, who altered her medication regimen,
discontinuing the Wellbutrin and lithium, and adding Abilify, a medication approved as an
antipsychotic and antidepressant add-on. Id.
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The Individual remarried her second husband in August 2008. Id. In November 2008, the
Individual was evaluated by a DOE consultant-psychiatrist as part of a routine background
investigation in connection with her security clearance. Id. at 10-11. The DOE consultant-
psychiatrist diagnosed the Individual with Dysthymic Disorder and Major Depressive Disorder,
in sustained full remission. Id. at 10; see also DOE Ex. 12. The DOE consultant-psychiatrist
further concluded at that time that the Individual did not have an illness or condition which
causes, or may cause, a significant defect in judgment or reliability. Id. The Individual’s
marriage deteriorated over the next year and, in September 2009, she and her second husband
divorced for the second time. Id. at 11. The Individual continued seeing Treating Psychiatrist 1
and her medications remained stable. Id. She sees Treating Psychiatrist 1 approximately every
six months for medications management. Id. She has not engaged in psychotherapy or other
counseling. Id.
In April 2011, the Individual was subject to another reinvestigation regarding her security
clearance. Id. at 12; see also DOE Ex. 14. In connection with this reinvestigation, the
Individual’s second husband was interviewed by an Office of Personnel Management (OPM)
investigator. Id. The Individual’s second husband initially gave favorable testimony regarding
the Individual and stated that he considered her to be mentally and emotionally stable. Id.
However, the next day, he contacted the OPM investigator, recanted his testimony from the
initial interview, and made several derogatory allegations as to the Individual’s mental and
emotional stability, as well as her general character and trustworthiness. Id. Several months
later, the Individual’s second husband submitted to several prominent figures, both within DOE
and in the public at large, a rambling, largely incoherent 55-page memorandum in which he
makes several inflammatory accusations regarding the Individual’s character, conduct, and
mental state. Id. at 12; see also DOE Ex. 13. Because the memorandum contained potentially
derogatory information regarding the Individual’s mental condition, the LSO referred her to the
DOE Psychiatrist for an evaluation. DOE Ex. 11.
Following the September 2011 evaluation, the DOE Psychiatrist diagnosed the Individual with
Borderline Personality Disorder, a disorder which has caused a significant defect in the
Individual’s judgment in the past.2 Id. at 14-18. The DOE Psychiatrist further noted that the
2 The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
Text Revision (2000) (DSM-IV-TR) defines Borderline Personality Disorder as follows:
A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity
beginning in early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
(1) frantic efforts to avoid real or imagined abandonment;
(2) a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of
idealization and devaluation;
(3) identity disturbance: markedly and persistently unstable self-image or sense of self;
(4) impulsivity in at least two areas that are potentially self-damaging (e.g., spending, sex, substance abuse,
reckless driving, binge eating);
(5) recurring suicidal behavior, gestures, threats, or self-mutilating behavior;
(6) affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or
anxiety usually lasting a few hours and only rarely more than a few days);
(7) chronic feelings of emptiness;
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Individual’s prognosis is “only fair, since she has had a very difficult childhood history, a pattern
of dysfunctional personal relationships that worsened after her 2008 evaluation by [a DOE
consultant-psychiatrist], and a continued reluctance to address her issues in psychotherapy.” Id.
at 18.
2. The Associated Security Concerns
Criterion H concerns information that a person has “an illness or mental condition of a nature
which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed
clinical psychologist causes, or may cause, a significant defect in judgment or reliability.”
10 C.F.R. § 710.8(h); see also Adjudicative Guidelines, Guideline I, ¶ 27. It is well-established
that a diagnosis of a mental health disorder raises security concerns under Criterion H. See id.,
Personnel Security Hearing, Case No. TSO-0903 (2010); Personnel Security Hearing, Case No.
TSO-0880 (2010).3 Based on the DOE Psychiatrist’s opinion that the Individual meets the
criteria for Borderline Personality Disorder, I find that the LSO properly invoked Criterion H.
B. Whether the Individual Has Mitigated the Security Concerns
At the hearing, the Individual generally did not dispute the facts cited above, but did disagree
with the DOE Psychiatrist’s diagnosis. The Individual and her witnesses testified regarding the
Individual’s mental condition and her mental and emotional stability.
The Individual testified in detail regarding her family background, her mental health issues, and
the treatment she has sought. Tr. at 106-33; 137-41. According to the Individual, she grew up in
a “very tense” household, surrounded at times by physical and verbal abuse. Tr. at 108. She
speculated that her difficult upbringing may have contributed to her marrying her first husband
so young and staying with her second husband for so long, despite the many problems in that
marriage. Id. The Individual acknowledged her past issues with depression, but noted that she
sought psychiatric treatment to manage her condition and has been compliant in taking the
medications prescribed to her. Tr. at 113-18, 129. According to the Individual, her mental
condition has been stable since her August 2007 suicide attempt. Tr. at 129-30. She continues
seeing Treating Psychiatrist 1 for medication management and takes her medications as directed.
Tr. at 131-32. She acknowledged that she has not yet engaged in psychotherapy, but will do so
in the near future if necessary to retain her security clearance. Tr. at 130, 145; see also Indiv.
Ex. T (note from Individual’s counsel indicating that the Individual has selected a therapist and
scheduled her first appointment). However, she did note that she does not believe that she needs
therapy at this time, although there are “things [she] can work on.” Tr. at 145. The Individual’s
testimony regarding her treatment was corroborated by her significant other, who testified that
(8) inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger,
recurrent physical fights);
(9) transient, stress-related paranoid ideation or severe dissociative symptoms.
DSM-IV-TR at 710.
3 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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the Individual continues to meet with her psychiatrist and that she is “very consistent” in taking
her medications. Tr. at 79, 94-97. The Individual’s work colleagues also testified that they are
aware that the Individual sees a psychiatrist and takes medications to manage a mental health
condition. Tr. at 19, 41, 50.
The Individual testified that she currently feels stable and happy. Tr. at 133. She has a good
relationship with her first husband and is satisfied with their partnership in parenting their son.
Tr. at 64, 104. She has also limited contact with members of her family that caused her stress
and sadness and has cut off all contact with her second husband. Tr. at 74, 109, 122. The
Individual is currently in a stable, calm and loving relationship with her significant other. Tr. at
65, 126. She is also very close to her coworkers and can rely on them for support, if necessary.
Tr. at 151. Regarding the Individual’s mental and emotional state, the Individual’s significant
other testified that the Individual has never behaved in a way that would cause him to question
her judgment or emotional state. Tr. at 71-72. He further stated that the Individual reacts
appropriately to stressful or difficult situations. Tr. at 98. This sentiment was echoed by the
Individual’s work colleagues, who testified that the Individual has never let her personal
problems affect her work and has always demonstrated sound judgment on the job. Tr. at 20, 24,
30, 32, 41, 47-48, 57.
Based on the foregoing, it is clear that the Individual readily acknowledges the fact that she has a
mental health condition that requires treatment and has taken steps to manage that condition.
Her personal life is much more stable than it has been in many years, since she has eliminated
contact with her second husband and entered into a new, more peaceful relationship with her
significant other. She has also managed to perform well and exercise good judgment at work,
regardless of the varying degrees of upheaval in her personal life over the last several years.
These factors mitigate, to some degree, the concerns raised by the Individual’s mental state.
Nonetheless, I cannot conclude that, at this time, the risk of the Individual experiencing a severe
episode of depression or mental instability in the future is low enough to warrant restoration of
her security clearance.
There is significant disagreement among the mental health experts in this case regarding the
Individual’s diagnosis and prognosis. The Individual’s Psychiatrist, after evaluating the
Individual and reviewing her background, diagnosed her with Depression, which he believes is
“now under control.” Tr. at 161. He noted that the Individual has been able to overcome a
difficult childhood and troubled relationships and has become independent and successful. Tr. at
162. He disagreed with the DOE Psychiatrist’s diagnosis of Borderline Personality Disorder,
noting that a diagnosis of Borderline Personality Disorder is difficult to make after only
evaluating an individual once. Tr. at 161. The Individual’s Psychiatrist stated that the Individual
had recently been administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), a
personality assessment tool commonly used in the mental health field, which indicated that the
Individual has some personality “traits or qualities,” but they are not indicative of a personality
disorder. Tr. at 164, 172; see also Indiv. Ex. A (results from Individual’s January 2012 MMPI-
2). The Individual’s Psychiatrist stated that although he believes the Individual’s Depression is
“under control,” and that she is currently stable, she could benefit from psychotherapy. Tr. at
166. He opined that, if the Individual engages in therapy in the future and continues seeing her
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treating psychiatrist, her prognosis is good. Tr. at 185-86. However, without therapy, the
Individual’s prognosis was only fair. Tr. at 186.
Having heard the hearing testimony, including that of the Individual’s Psychiatrist, the DOE
Psychiatrist did not change his diagnosis of Borderline Personality Disorder. Tr. at 211. As an
initial matter, the DOE Psychiatrist explained that the difference between Borderline Personality
Disorder, a personality disorder, and Depression, a mood disorder, is important because
personality disorders are more long-standing disorders that are slower to respond to treatment.
Tr. at 215-16, 233-36. Borderline Personality Disorder can also be more disruptive because it is
a condition that is susceptible to rapid onset in times of stress. Tr. at 235. Major depressive
disorders, on the other hand, are more easily treated and tend to respond well to medications. Tr.
at 234. In this case, the DOE Psychiatrist determined that the Individual met each of the nine
criteria for Borderline Personality Disorder and found that the Individual’s symptom profile was
“pretty typical” for the disorder. Tr. at 201-03, 206. The DOE Psychiatrist acknowledged that
he considered to some extent the information provided by the Individual’s second husband, but
indicated that he would have made the same diagnosis absent that information based on the
Individual’s background. Tr. at 208, 237. The DOE Psychiatrist described the Individual’s
prognosis as “only fair.” Tr. at 214-16. He noted as positive factors the fact that the Individual
appeared to be doing well and was in a stable relationship. Tr. at 214. However, the DOE
Psychiatrist remained concerned about how stress might affect the Individual’s mental state. Id.
He opined that the Individual can be rehabilitated, but she needs “a year or two” of
psychotherapy. Tr. at 226-27. The DOE Psychiatrist concluded that, as of the hearing, the
Individual had a “moderate risk” of experiencing a “severe episode of suicidality or abnormal
thinking,” adding that stress increases the risk. Tr. at 236.
After considering the hearing testimony and reviewing the record as a whole, I cannot conclude
at this time that the Individual has mitigated the Criterion H concerns cited in the Notification
Letter.4 The Individual has a long-standing history of a mental health condition, including a
2007 suicide attempt. The changes that the Individual has made in her personal life, including
reducing or eliminating contact with people who caused her stress or otherwise brought turmoil
to her life, are positive factors. The fact that she has sought treatment from psychiatrists in the
past, and has been compliant in taking the medications prescribed to her, is also to her benefit.
However, the Individual’s lack of participation in psychotherapy as of the date of the hearing is
of concern, particularly given that the DOE Psychiatrist and the Individual’s Psychiatrist agree
that therapy is indicated in the Individual’s case. In addition, there have been significant
disagreements among mental health professionals regarding the Individual’s diagnosis, not only
during this proceeding, but also in her treatment history. As noted by the DOE Psychiatrist, the
distinction is important because the conditions with which the Individual has been diagnosed are
4
The Adjudicative Guidelines set forth several conditions which may serve to mitigate security concerns associated
with an individual’s mental or psychological condition. Those conditions include: “(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 … and the individual is
currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health
professional; [and] (c) [a] recent opinion by a duly qualified mental health professional … that an individual’s
previous condition is under control or in remission, and has a low probability of recurrence or exacerbation.” See
The Adjudicative Guidelines, Guideline I, ¶ 29.
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very different and carry different prognoses. The uncertainty regarding the Individual’s
diagnosis raises some doubts regarding the appropriateness and efficacy of the Individual’s
treatment regimen. Nonetheless, regardless of the dispute as to the Individual’s diagnosis, the
DOE Psychiatrist and the Individual’s Psychiatrist agreed at that hearing that, without having
undergone psychotherapy, the Individual’s prognosis was only fair. In light of these facts, I
agree with the opinion of the DOE Psychiatrist that the Individual’s risk of experiencing a future
episode causing a defect in her judgment or reliability remains elevated.
Based on the foregoing, I find that the Individual has not presented adequate evidence of
rehabilitation and reformation from a mental illness or condition which causes or may cause a
significant defect in her judgment or reliability. Therefore, I cannot conclude that she has
mitigated the Criterion H concerns cited in the Notification Letter.
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criterion H of the Part
710 regulations. I also find that the Individual has not presented sufficient information to resolve
those concerns. Therefore, I cannot conclude that restoring the Individual’s suspended DOE
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). Accordingly, I find that the DOE
should not restore the Individual’s access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: February 29, 2012