PSH-13-0010

* 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: January 30, 2013 ) Case No.: PSH-13-0010
)
____________________________________)
Issued: May 2, 2013
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Hearing Officer Decision
______________________
Richard A. Cronin, Jr, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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.”1 For the reasons set forth below, I conclude that the DOE should
restore the Individual’s access authorization.
I. BACKGROUND
The Individual has been an employee of a DOE contractor since 2010 and has held a security
clearance for the duration of his employment. Exhibit (Ex.) 3 at 1. In 2006, before the Individual
became an employee of the DOE contractor, the Individual injured his back which eventually
resulted in the fusion of several lumbar disks. Transcript of Hearing, Case No. PSH-13-0010
(hereinafter cited as “Tr.”) at 82. As a result of the injury and surgery, the Individual suffered
from significant pain and underwent treatment by a pain-management physician. Tr. At 84; Ex. 4
at 4. The pain-management physician prescribed Oxycodone, a prescription narcotic, to the
Individual for pain along with an anti-anxiety drug, Xanax. In January 2012, the Individual was
interviewed by a facility health occupational health psychologist (Occupational Health
Psychologist) regarding his use of Oxycodone and Xanax. Ex. 7. The Individual began to have
concerns whether he was being over-medicated with Oxycodone and decided to enter into an
intensive outpatient program (IOP) for his prescription drug problem in September 2012. Ex. 4
1 An access authorization is an administrative determination that an individual is eligible for access to classified
matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Decision as
access authorization or a security clearance.
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Pursuant to a request by the local security office (LSO), a DOE-contractor psychologist (DOE
Psychologist) examined the Individual in December 2012 as to the Individual’s self-reported
usage of Oxycodone. In his report regarding the examination (December 2012 Report), the DOE
Psychologist diagnosed the Individual as suffering from Opioid-Related Disorder, Not Otherwise
Specified (ORD)2 and Anxiolytic-Related Disorder (Xanax), Not Otherwise Specified (ARD).
Ex. 4 at 2, 10.
After reviewing the December 2012 Report, the LSO determined that derogatory information
existed that cast into doubt the Individual’s eligibility for access authorization. The LSO
informed the Individual of its determination in a January 2013 letter (Notification Letter). The
Notification Letter also informed the Individual that his security clearance was suspended and
that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt
concerning his eligibility for an access authorization.
The Individual requested a hearing in this matter. The LSO forwarded this request to OHA and
the OHA Director appointed me as the Hearing Officer. The DOE introduced 10 exhibits into the
record of this proceeding and presented the testimony of the DOE Psychologist. The Individual
introduced 10 exhibits and presented the testimony of four witnesses in addition to his own
testimony.
II. FACTUAL FINDINGS AND THE
ASSOCIATED SECURITY CONCERNS
The Part 710 regulations require that I “make specific findings based upon the record as to the
validity of each of the allegations” in the Notification Letter. 10 C.F.R. § 710.27(c). In this case, the
Notification Letter cites paragraphs (h) of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8 (Criterion H). Ex. 1.3 The Individual does not
dispute the factual accuracy of the Criterion H derogatory information described in the
Notification Letter. I set forth my factual findings below.
In his December 2012 Report, the DOE Psychologist found that, as a result of the Individual’s
pain-management treatment, the Individual was experiencing tolerance to and became
physiologically dependent on Oxycodone. Ex. 4 at 8. This phenomenon would be expected from
anyone using high doses of Oxycodone. Ex. 4 at 8. The DOE Psychologist did not believe that
the Individual suffered from opioid dependence but may have developed hyperanalgesia, a
physiological response to chronic pain therapy where the body develops an increased sensation
of pain. Ex. 4 at 9. Given these facts, the DOE Psychologist diagnosed the Individual as suffering
from ORD. Ex. 4 at 9. Because the same physical phenomenon was occurring with the
Individual’s use of a prescribed anti-anxiety drug, Xanax, the DOE Psychologist also determined
that the Individual also suffered from ARD. Ex. 4 at 9. The DOE Psychologist found that both
disorders could cause a significant defect in judgment and reliability.4 Ex. 4 at 11.
2 Opioids are semi-synthetic drugs, such as Oxycodone, that have similar therapeutic effects to drugs derived from
Opium, such as Morphine.
3 Criterion H refers to information indicating that an individual suffers from “[a]n illness or mental condition of a
nature which, in the opinion of a psychiatrist or licensed clinical psychologist, causes or may cause, a significant
defect in judgment or reliability.” 10 C.F.R. § 710.8 (h).
4 There is no evidence before me that the Individual used his prescribed Oxycodone and Xanax in a manner other
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The DOE Psychologist also noted in the December 2012 Report that, at the time of his
examination, the Individual had just recently completed the IOP. Ex. 4 at 10. He found that the
Individual’s IOP was “solid” and that the Individual was participating in a 12-step program along
with psychotherapy and avoiding all mind-altering substances. Ex. 4 at 11. However, he opined
that the Individual’s rehabilitation was “early and fragile,” especially in light of the fact that the
Individual still suffered from significant continuing pain. Ex. 4 at 10-11. The DOE Psychologist
opined that, in order for the Individual to adequately demonstrate rehabilitation from his
prescription drug disorders, the Individual should maintain his current plan of recovery for a
period of six months. Ex. 4 at 11.
Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's
reliability and trustworthiness, both because it may impair judgment. See Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information issued by the
Assistant to the President for National Security Affairs, The White House (December 29, 2005)
(Adjudicative Guidelines), Guideline H. Given the DOE Psychologist’s opinion indicating that
the Individual suffers from ORD and ARD, disorders that could cause a significant defect in
judgment or reliability, the LSO had sufficient grounds to invoke Criterion H.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that in these proceedings, a Hearing Officer must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration
of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information,
favorable and unfavorable, that has a bearing on the question of whether granting the individual a
security clearance would compromise national security concerns. Specifically, the regulations
compel me to consider the nature, extent, and seriousness of the individual’s conduct; the
circumstances surrounding the conduct; the frequency and recency of the conduct; the age and
maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence
of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). In considering
these factors, the Hearing Officer also consults the Adjudicative Guidelines that set forth a more
comprehensive listing of relevant factors.
A DOE administrative proceeding under 10 C.F.R. Part 710 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). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The
regulations further instruct me to resolve any doubts concerning the individual’s eligibility for
access authorization in favor of the national security. 10 C.F.R. § 710.7(a).
IV. ANALYSIS
than which his pain-management physician directed.
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After reviewing the evidence before me, I find that the Individual has resolved the Criterion J
concerns raised by the DOE Psychologist’s diagnoses of ORD and ARD. The Individual testified
that his visit with the Occupational Health Psychologist led him to ponder whether he was being
appropriately medicated by his pain-management physician. Tr. at 89-90. The Individual decided
to undergo treatment for his increasing use of Oxycodone and Xanax because of his realization
that he was not feeling any better with his then pain-management treatment program. Tr. at 88-
89. After undergoing a five-day medical detoxification program at the IOP facility, the
Individual began the 60-day IOP program where the Individual attended daily group therapy and
Narcotics Anonymous (NA) meetings.5 Tr. at 90. During the IOP, the Individual, to save
commuting time, moved into the residential facility at the IOP which was governed by strict
rules regarding conduct. Tr. at 92. The Individual obtained a sponsor (Sponsor) while
participating in the IOP and currently works the 12 steps with his Sponsor. Tr. at 97-98. The
Individual completed the IOP program in November 2012 but believes that he will continue in
the recovery process for the rest of his life. Tr. at 98; see Ex. D (IOP psychologist certifying the
Individual’s completion of IOP and opining that the Individual has “excellent” prognosis). The
Individual attends a minimum of three NA meetings a week and checks in with the IOP facility
once a week. Tr. at 100-01; see Ex. J (Individual’s NA meeting attendance records). The
Individual’s last use of prescription Oxycodone, Xanax, alcohol, or any other mood-altering
substance occurred in September 2012 and his intention is to never use such substances again.
Tr. at 100-01. As part of his recovery plan, the Individual proactively informs his doctors
regarding his problem with prescription drugs and his wish that such drugs be used on him only
in situations where he is in excruciating pain or in a life-threatening situation. Tr. at 105. His
baseline level of pain is now significantly less than it was prior to his treatment at the IOP and he
now treats his pain with non-prescription pain relievers, such as Ibuprofen, or with physical
techniques such as stretching, or exercises. Tr. at 105, 114.
The Individual’s Sponsor testified that he began sponsoring the Individual in December 2012.
Tr. at 11. He speaks to the Individual twice a week and goes to meetings with the Individual two
or three times a week. Tr. at 11. The Sponsor is working through the 12 steps of NA with the
Individual. Tr. at 11-12. He believes that the Individual has a great deal of humility and courage
and has been eager to learn more about addiction. Tr. at 17. In the Sponsor’s opinion, the
Individual is doing everything he needs to do to stay away from prescription pain or anxiety
medication. Tr. at 21. In the four and one-half months the Sponsor has observed the Individual,
he has not seen any evidence of the Individual using prescription pain medication. Tr. at 29, 31-
32. The Individual is very reliable and, when the Individual informs the Sponsor that he can’t be
at a meeting, he also sends a text message explaining why he couldn’t attend the meeting. Tr. at
23. The Sponsor witnessed the Individual receive his six-month [abstinence] key tag and was
excited for the Individual since many NA members will fail to remain abstinent after 90 days. Tr.
at 24.
The Individual’s father (Father) testified that the Individual’s entire family was supportive of the
Individual’s decision to seek treatment for his problem at the IOP and participated in the
program with the Individual. Tr. at 48-52; see Ex. B. The Individual has lived with his family
since completing the IOP and the Father has not observed the Individual use narcotic pain
medication since entering the IOP at 55. Overall, the Individual is now a happier person. Tr. at
57-58. The Father believes that the Individual now deals with pain better and uses a variety of
non-medicinal techniques, such as relaxation and stretching, to reduce his pain. Tr. at 59-60. If
5 NA is a 12-step program similar to Alcoholics Anonymous. Tr. at 28.
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he or the Individual’s mother noticed anything different with the Individual, they would not
hesitate to intervene. Tr. at 61-62. One of the Individual’s friends (Friend) testified that he was
unaware that the Individual had such a problem with prescription drugs when the Individual first
discussed the problem with him. Tr. at 70-71. After the Individual returned from the IOP, the
Friend noticed that the Individual became more outgoing and seemed more like the person he
was before the injury to his back. Tr. at 71-72. The Friend goes with the Individual to a number
of sporting events and the Individual eats dinner with the Friend and his family two or three
nights a week. Tr. at 74-75. The Individual and the Friend’s family now go to the same church.
Tr. at 75. As an indication of their faith in the Individual, the Friend and his wife both trust the
Individual to care for their daughter. Tr. at 75. The Friend has never observed the Individual
consume alcohol. Tr. at 75. In the Friend’s opinion, the Individual will not go back to using
prescription pain medications because of the Individual’s belief that using those medications
would make him feel physically worse. Tr. at 77-78. The Individual’s supervisor (Supervisor)
testified that the Individual’s work performance was satisfactory. Tr. at 39, 46; see Ex. I
(“average” and “above-average” performance evaluations). Further, the Supervisor testified that,
in the almost three years he has known the Individual, he has never received a report of the
Individual being intoxicated on the job. Tr. at 39-40.
After listening to all of the testimony, the DOE Psychologist opined that the Individual has
demonstrated adequate evidence of rehabilitation to his prescription drug problems. Tr. at 133. In
this regard, the DOE Psychologist believes that the Individual has successfully completed the
IOP and has gained increased knowledge about his medication problem. He also testified as to
his opinion that the Individual has a strong relapse plan and has a number of techniques to deal
with his pain. Tr. at 128. Further, the Individual has completed all of the DOE Psychologist’s
recommendations regarding treatment. Tr. at 128. The DOE Psychologist does not now see any
problems with the Individual’s judgment or reliability. Tr. at 129.
Based upon the evidence in the record, including the DOE Psychologist’s testimony that the
Individual has complied with the treatment recommendations set out in the December 2012
Report, I find that the Individual has resolved the concerns raised by the Criterion L derogatory
information contained in the Notification Letter. My finding is also supported by the convincing
testimony presented by the Individual and the other witnesses regarding the quality of the
Individual treatment programs and the fundamental changes that the Individual has made to deal
with his chronic pain condition.
V. CONCLUSION
For the reasons set forth above, I conclude that the Individual has resolved the DOE’s security
concerns under Criterion H. Therefore, the Individual has demonstrated that restoring his access
authorization would not endanger the common defense and would be clearly consistent with the
national interest. Accordingly, I find that the DOE should restore the Individual’s access
authorization. Review of this decision by an Appeal Panel is available under the procedures set
forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: May 2, 2013
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