PSH-13-0074

*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: June 14, 2013 ) Case No.: PSH-13-0074
)
____________________________________)
Issued: September 19, 2013
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Hearing Officer Decision
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Steven J. Goering, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXX (hereinafter referred to as “the individual”)
for 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.2
I. BACKGROUND
The individual is an employee of a DOE contractor and held an access authorization until it was
recently suspended. On February 1, 2013, the individual was hospitalized for a psychological
evaluation. Exhibit 9. After the individual reported this hospitalization, Exhibit 8, a Local Security
Office (LSO) summoned the individual for an interview (PSI) with a personnel security specialist on
February 19, 2013. Exhibit 10. After the PSI, the LSO referred the individual to a local
psychologist (hereinafter referred to as “the DOE psychologist”) for an agency-sponsored
evaluation. The DOE psychologist prepared a written report, setting forth the results of that
evaluation, and sent it to the LSO. Exhibit 6. Based on this report and the rest of the individual’s
personnel security file, the LSO determined that derogatory information existed that cast into doubt
the individual’s eligibility for access authorization. The LSO informed the individual of this
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.
2 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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determination in a letter that set forth the DOE’s security concerns and the reasons for those
concerns. See Exhibit 1 (summary of security concerns). I will hereinafter refer to this letter as the
Notification Letter. The Notification Letter also informed the individual 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 I
was appointed the Hearing Officer. The DOE introduced eleven exhibits into the record of this
proceeding. The individual introduced five exhibits, and presented the testimony of nine witnesses,
in addition to his own testimony.
II. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
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 restoring the individual’s 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).
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).
III. NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited derogatory information within the purview of 10 C.F.R. § 710.8,
subsection (h) (hereinafter referred to as Criterion H). Exhibit 1.3 The Notification Letter also cited
Section 1072 of the National Defense Authorization Act for Fiscal Year 2008, otherwise known as
the Bond Amendment. Id.4
3 Under Criterion H, information is derogatory if it indicates that the individual has an “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). The Notification Letter originally also cited
10 C.F.R. § 710.8, subsection (k), but the LSO subsequently issued an amended Summary of Security Concerns,
removing the citation to that subsection of the regulations. Memorandum from LSO to Director, OHA (July 18, 2013).
4 The Bond Amendment provides that “the head of a Federal agency may not grant or renew a security clearance
for a covered person who is an unlawful user of a controlled substance or an addict (as defined in section 802(1) of title
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To support Criterion H, the LSO cited the report of the DOE psychologist, in which he concluded
that the individual met criteria found in the Diagnostic and Statistical Manual of Mental Disorders
IV-TR (DSM-IV-TR) for Opioid Dependence, and that this condition causes, or may cause, a
significant defect in judgment and reliability. Id. Under the Bond Amendment, the LSO cited the
same diagnosis. Id.
I find that the DOE psychologist’s diagnosis, the fact of which is not in dispute, adequately justifies
the DOE’s invocation of the Bond Amendment and Criterion H, and raises significant security
concerns. First, the diagnosis of Opioid Dependence raises a concern that the individual is an
“addict” under the Bond Amendment. Further, certain emotional, mental, and personality conditions
can impair judgment, reliability, or trustworthiness, in this case Opioid Dependence, a condition that
the DOE psychologist found causes or may cause a significant defect in judgment or reliability,
being of concern under Criterion H. See Revised Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information (Adjudicative Guidelines), The White House (December 19,
2005), Guideline I.
IV. FINDINGS OF FACT AND ANALYSIS
The individual is 55 years old, and has worked for DOE contractors since January 2004. Exhibit 7;
Exhibit 11 at 20. In February 1979, when the individual was 20 years old, he attempted suicide by
shooting himself in the stomach with a 38-caliber revolver. Exhibit 6 at 3. The individual testified
that, at that time in his life, he had “no direction, no goals,” and that the “catalyst” for the attempt
was the departure of his girlfriend to another state with their son. Id.; Hearing Transcript (Tr.) at
18-20.
In 1984, while working for a construction company, the individual suffered a serious injury to his
right knee. Exhibit 6 at 4; Tr. at 29, 73. As a result, he received a $30,000 settlement payment from
the construction company, which he used in part to buy drugs, including cocaine, to which he
became addicted. Exhibit 6 at 4. He also consumed excessive amounts of alcohol, as much as a case
of beer per day, during this period. Id. He sought treatment for his cocaine addiction, and stopped
using the drug, but continued drinking until subsequently receiving treatment and stopping his use of
alcohol, from which he has abstained since 1986. Id.
The individual tore the anterior cruciate ligament (ACL) in his left leg while playing basketball in
the early 1990s, Tr. at 25, and again injured his left knee while playing basketball in 2004. Id. at 26;
Exhibit 6 at 5. Beginning in approximately 2003, the individual used prescribed narcotic
medications to treat the pain from his injuries to both legs. Exhibit 6 at 5. At first, he was
prescribed short-acting opioid medications, but in 2009 or 2010 was switched to an extended-release
opioid medication containing morphine sulfate. Id.; Exhibit 10 at 21. The individual testified that
he much preferred the extended-release medication to the short-acting medication, stating that he did
not like the way the short-acting medication made him feel and that “the pain would come back too
quickly, . . . .” Tr. at 33. The individual’s wife testified that the individual’s doctor explained to her
that “the morphine sulfate was . . . much better suited for somebody who doesn't want the high, who
21).” 50 U.S.C. § 435c(b) (2011). Section 802(1) of title 21 defines “addict” as “any individual who habitually uses any
narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of
narcotic drugs as to have lost the power of self-control with reference to his addiction.” 21 U.S.C. § 802(1) (2011).
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wants pain managed, you know. And so I felt good about that. . . . I wanted him to be clearheaded.”
Id. at 78-79. She expressed her concern that the short-acting medications gave “him a high. And he
is a former drug addict, so I don't want him to have those in his body, you know. I just wanted him to
be as clearheaded, clear thinking as he could be.” Id. at 79.
In late January 2013, the individual was experiencing pain in his legs and wrist, which had been
operated on several years ago, of a “9 or 10 on a scale of 10.” Exhibit 6 at 5, 6. At this time, the
individual was being prescribed 130 milligrams of morphine sulfate, 3 times a day, taken in two
pills, one of 100 milligrams and another of 30 milligrams. Tr. at 37. By Monday, January 28, 2013,
the individual ran short of his monthly supply of 30 milligram tablets, due to having taken more than
the prescribed amount to treat his pain. Id. at 43-44, 86. The individual attempted to get an early
refill of his 30 milligram tablets, but the doctor “couldn't fill the 30 milligram early, so she gave me
some -- some of the fast-acting ones, to tide me over for those two days, is what she said.” Id. at 44.
The individual’s wife did not find out that the individual had been provided fast-acting medication
until four days later. Id. at 86 (“I guess he got it filled on a Monday, and then on Friday night he
brought the pill bottle to me.”). She testified that she
was very upset, because I didn't know about it, and, two, because I don't want him on
short-acting. He said he did not ask for it, but I was upset that he even took the
prescription from them. I mean, yes, you didn't ask for it, but – but taking it and
getting them filled was what I was upset with.
Id. at 88. An argument ensued, during which the individual tried to get the pills back from his wife,
ostensibly to flush them down the toilet. Id. at 91. The individual’s wife testified that “earlier in the
week I had . . . burned myself really, really bad, . . . . I had my arm down, it wasn't covered, and he
reached to grab for the bottle of pills, and he ripped the skin off of it.” Id. at 92. She stated that the
individual “was very upset that he had hurt me, one, and he felt very bad that he had disappointed
me, and that's when he said, you know, ‘Just kill me. You ought to just kill me. Just get a knife.’
And then he said, ‘In fact, I'll get a knife.’” Id. at 92-93.
According to the individual’s wife, he was going to leave the house, and she “just wanted to stop
him from leaving. I mean, yeah, I was upset, and it was startling to hear him say that, but really I
never took seriously that he was going to harm himself.” She then called 911, not “because I
thought that he was really going to harm himself. I didn't really think that. I was angry, and I was
looking for help to stop him from leaving.” Id. at 94. An incident report filed by a local police
department states that “[d]ue to the statements by [the individual] to hurt himself we transported him
to [a local hospital] for a psychological evaluation. [The individual] went voluntarily and at that time
it was determined that there were no threats of violence nor further threats of violence between” the
individual and his wife. Exhibit 9 at 3.
Contemporaneous hospital records indicate that, based upon the information provided by the
individual in the psychological evaluation and “no observed psychosis,” the individual was to be
discharged to his home with his wife, who reported that she felt safe with him at home.
Exhibit 9 at 8. The individual’s wife testified that the individual was at the hospital “maybe two
hours. And I went and picked him up, and here we are. He went in to work Monday and reported it.”
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Tr. at 98; see Exhibit 8 (February 5, 2013, Personnel Security Information Report from individual’s
employer to DOE).
To address the primary cause of his chronic pain, the individual has scheduled double knee
replacement surgery for October 31, 2013. Id. at 16. The individual explained that he had
previously considered knee replacement surgery, but for several reasons “opted for the less
aggressive approach of physical therapy and pain management . . . .” Id. at 15. First, he considered
his age, as he was told by orthopeadic doctors that “new knees might not last more than 10 years. If
that was the case, a second replacement might be needed. I was further told that a second
replacement could be risky and potentially result in the loss of a leg.” Id. The individual also
testified that, “financially I would not have been able to manage the loss of income during the
lengthy recovery period after the surgery.” Id.
The individual testified that his former employer recently offered its former employees a one-time
lump sum payout in lieu of a pension payment. Id. at 51-52. The individual chose to accept the one-
time payment, which is scheduled to be released in September 2013. “We do get a penalty, but the
fact that it gives me the opportunity to get new knees, that’s what I would like to do.” Id. at 52.
Asked whether his decision was in reaction to DOE’s concerns, he replied that “obviously, it's a
security concern of DOE's, and . . . God, I think, put this money in my place. This was never there
before. I've never had, you know, $25,000 coming my way ever like that, you know, during -- for
this kind of thing.” Id. at 50-51; see id. at 116 (confirmation by former co-employee of pension
buyout offer).
Despite this fairly complex history of the individual, the concerns presented in the Notification
Letter under Criterion H and the Bond Amendment, as noted above, are based solely on the
conclusion of the DOE psychologist that the individual met criteria found in the DSM-IV-TR for
Opioid Dependence, and that this condition causes, or may cause, a significant defect in judgment
and reliability.
The Adjudicative Guidelines set forth the following conditions that “could mitigate security
concerns” arising from psychological conditions:
(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 (e.g., one caused by a death,
illness, or marital breakup), the situation has been resolved, and the individual no longer
shows indications of emotional instability;
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(e) there is no indication of a current problem.
Adjudicative Guidelines at ¶ 29 (Guideline I).
Regarding conditions (a) and (b) above, the DOE psychologist, who was present for the entire
hearing and testified last, agreed that the typical treatment for substance addiction would not be
appropriate here because the individual is taking opioid medications in response to pain. Tr. at 173.
Thus, the DOE psychologist testified that he would not “expect him to [enter a treatment program],
and he probably would do it and probably comply with it and go right through it. But would it be
beneficial to him? I don’t think so.” Id.
The DOE psychologist testified that “[t]his is an unusual – for me, an unusual case. And my opinion
has shifted. The issue is complex for me as a psychologist.” Id. at 159. On one hand, he noted that
he had “no question” that the individual was dependent on opiates. Id. On the other hand, the DOE
psychologist remarked that the testimony of current and past coworkers of the individual indicated
that the individual “doesn't do things that let me see . . . that he is an unstable character. I tend to
believe that he is a pretty stable fellow. That was not very obvious to me [before] . . . .” Id. at 161.
The DOE psychologist further stated that
there's no evidence of an increasing instability -- of an increasing wish for more
drug, even though you at one point said kind of off to the side to me you'd take more
if you could, but they won't let you.
Well, I don't know that you would take more if you could. The fact of the matter is --
is that you're not taking more because they won't let you, they being the pain
management clinic, and you'd lose your access to that.
You're doing the one thing that has the best chance of bringing -- of getting rid of
that problem in that you're going to have surgery.
Id. at 163-64.
I find that this testimony is relevant to the application of condition (c) above, as evidence that the
individual’s condition is “under control . . . and has a low probability of recurrence or
exacerbation; . . .” Further, the DOE psychologist testified that switching to an extended-release
opioid medication is “another thing that he's kind of over time taken more control of. He may have
enjoyed the high earlier, but he's put himself -- he's gotten himself in a position where he's taken a
medicine that doesn't produce that, although he's still addictive. But it doesn't produce that high.” Id.
at 166.
Pertinent to both conditions (c) and (e) (no indication of a current problem), the DOE psychologist
testified that, while the individual’s condition caused significant defects in judgment and reliability
in the past, he did not expect it to do so in the future, and that there was a low likelihood of
manifestation of such defects going forward. Id. at 170-71. He further testified that he was “very
confident” that the individual will take the steps necessary to address his pain in a way that might
lessen his need for narcotic drugs in the future. Id. at 173.
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Finally, at the hearing, I read to the DOE psychologist the definition of addict used in application of
the Bond Amendment, “any individual who habitually uses any narcotic drug so as to endanger the
public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to
have lost the power of self-control with reference to his addiction.” The DOE psychologist testified
that he did not think the individual meets that definition. Tr. at 172.
As noted above, the Part 710 regulations require me to make a “common-sense judgment . . . after
consideration of all relevant information.” 10 C.F.R. § 710.7(a). This is a forward-looking
determination as to whether restoring the individual’s security clearance would not endanger the
common defense and would be clearly consistent with the national interest. In this case, given that
the source of the concern is the individual’s opioid dependence, I must consider, under Criterion H,
the risk that this condition will, in the future, cause significant defects in the individual’s judgment
or reliability. Similarly, under the Bond Amendment, I must consider the risk that the individual’s
use of opioid medications will, in the future, “endanger the public morals, health, safety, or welfare,”
or cause the individual to “los[e] the power of self-control with reference to his addiction.”
In accord with the opinion of the DOE psychologist, I find that these risks are low. First, I note that
the individual has been using prescribed opioid medications for approximately 10 years, and that
this use resulted in an incident of concern only once over that period of time. Thus, though
relatively recent, I find this to be an isolated occurrence. See 10 C.F.R. § 710.7(c) (requiring
consideration of frequency and recency of the conduct).
Second, while I find that the individual’s use of more than the prescribed amount of medication in
response to his severe pain in January 2013 represents a lapse in judgment and reliability, I also find
that the individual exercised good judgment by following the proper protocol when he ran short on
his prescribed dosage, by notifying his medical provider of that fact, who prescribed him enough
medication to tide him over during the remaining days of his regular prescription.
Though the individual’s wife was clearly very upset when she learned that the individual had been
prescribed a short-acting medication for those few days, that fact and the argument that resulted
from it is more attributable to the decision of the medical provider than to a lapse in the individual’s
judgment and reliability. Moreover, I am convinced, as was the individual’s wife and the DOE
psychologist, that the statements made by the individual during that argument did not represent a
genuine threat of suicide. See Tr. at 161 (testimony of DOE psychologist that he “trust[s] the
evaluation” of the individual’s wife); 10 C.F.R. § 710.7(c) (requiring consideration of “the nature,
extent, and seriousness of the individual’s conduct” and “the circumstances surrounding the
conduct”).
Clearly, even an isolated lapse of judgment and reliability can raise the risk of a similar lapse in the
future. Considering the totality of the circumstances here, however, I find that not only is the risk of
a repeat of such an incident low, but that the consequences of such a lapse, if it should occur, would
not be severe, if the individual’s past behavior is any guide. Reducing that risk even further is the
fact that the individual is scheduled for double knee replacement surgery within the next two
months, which the DOE psychologist described as the “best chance” of ridding him of his
dependence on narcotic drugs. Even assuming that this surgery is delayed, cannot take place, or has
limited success, I find that the individual’s continued use of prescribed opioid medications does not
present more than minimal risk to the national security, given the individual’s decade-long track
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record of successfully taking these medications with only one isolated and relatively minor instance
of use of more than the prescribed amount of medication.
For these reasons, I find that the individual has resolved the concerns under Criterion H and the
Bond Amendment raised by his dependence on legally prescribed opioid pain medication.
V. CONCLUSION
For the reasons set forth above, I conclude that the individual has resolved the DOE’s security
concerns under Criterion H and the Bond Amendment. 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
security clearance. Review of this decision by an Appeal Panel is available under the procedures set
forth at 10 C.F.R. § 710.28.
Steven J. Goering
Hearing Officer
Office of Hearings and Appeals
Date: September 19, 2013