PSH-18-0024

*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: March 5, 2018 ) Case No.: PSH-18-0024
)
_________________________________________ )
Issued: May 24, 2018
_______________
Administrative Judge Decision
_______________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) 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 Individual’s security clearance should be granted.
I. BACKGROUND
A DOE Psychologist (the Psychologist) conducted a forensic psychological evaluation of the
Individual on December 11, 2017. On December 12, 2017, he issued a report in which he
concluded that the Individual meets the criteria set forth in Diagnostic and Statistical Manual of
the American Psychiatric Association, Fifth Edition (DSM-5) for Bipolar I Disorder, with psychotic
features. The Local Security Office (LSO) began the present administrative review proceeding by
issuing a Notification Letter to the Individual informing him that he was entitled to a hearing before
an Administrative Judge in order to resolve the substantial doubt regarding his eligibility for a
security clearance. See 10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter on February 5, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), I took testimony from the Individual, his mother, his twin sister, his fiancé, and the
DOE Psychologist. See Transcript of Hearing, Case No. PSH-18-0024 (hereinafter cited as “Tr.”).
The LSO submitted nine exhibits, marked as Exhibits 1 through 9 (hereinafter cited as “Ex.”). The
Individual submitted two exhibits, marked as Exhibits A and B.
1 Under the regulations, “Access authorization” means 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 also be referred to in this Decision as a security clearance.
- 2 -
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guideline I of the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines).
Under Guideline I, Psychological Conditions, the LSO alleges that the Psychologist has concluded
that the Individual has Bipolar Disorder I, with psychotic features. Statement of Security Concerns.
The Guidelines provide that “[c]ertain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness.” Guideline I at ¶ 28. Guideline I further provides that
“an opinion by a duly qualified mental health professional that the individual has a condition that
may impair judgment, stability, reliability, or trustworthiness” may raise a security concern and be
disqualifying. Guideline I at ¶ 28(b). Accordingly, these allegations adequately justify the LSO’s
invocation of Guideline I.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting 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).
The individual must come forward at the hearing with evidence 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 individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The
Part 710 regulations are drafted so as to permit the introduction of a very broad range of evidence
at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
- 3 -
The Individual is an applicant for a DOE security clearance. During his background investigation,
the Individual reported that he had been treated for a mood disorder, depression, and anxiety, and
that he was currently taking medications for these conditions. Ex. 5 at 2. At the LSO’s request,
the Psychologist conducted a three-and-one-quarter-hour forensic psychological interview of the
Individual on December 11, 2017. Ex. 6 at 1. The Psychologist also administered two standardized
psychological tests to the Individual: the Minnesota Multiphasic Personality Inventory-2-
Restructured Form (MMPI-2-RF), and the Rorschach test. Ex. 6 at 1. The Psychologist also
reviewed the Individual’s personnel security file. Ex. 6 at 2. On December 12, 2017, the
Psychologist issued a report in which he concluded that the Individual meets the criteria set forth
in Diagnostic and Statistical Manual of the American Psychiatric Association, Fifth Edition (DSM-
5) for Bipolar I Disorder, with psychotic features. In this report, the Psychologist recounts the
Individual’s history of domestic discord which resulted in intervention by law enforcement on at
least seven occasions between 2009 and 2014. Ex. 6 at 2-3. This domestic discord culminated
with the Individual taking himself to an emergency room in order to prevent himself from hurting
his former domestic partner or himself. Ex. 6 at 3. The Individual was taken into police custody
at the emergency room after threatening to brutally harm his former domestic partner and to take
his own life. Ex. 6 at 3.
When the Individual was released from jail, he returned to the emergency room and was
hospitalized for three days and diagnosed with “major depression and anxiety. Ex. 6 at 3. After
receiving treatment from a number of mental health care providers with disappointing results, he
was referred to his current physician (the Doctor) in 2013. The Doctor prescribed him Depakote,
which has been effective. Ex. 6 at 4. The Individual reported that he has not had any thoughts of
homicide or suicide since 2013. Ex. 6 at 5. The Psychologist, however, opined, “While he has
reportedly not been severely depressed or symptomatic over the past four years, he remains
vulnerable to these tendencies impairing his judgment, stability, reliability, and possibly his
trustworthiness, although there was no direct evidence of the latter.” Ex. 6 at 6. The Psychologist
further opined:
[The Individual] has a mental condition involving Mania and Major Depressive
Episodes. His symptoms have led to his psychiatric hospitalization and have
included psychotic aggressive affect, hallucinations, and frenetically driven
thinking. These fulfill the criteria for Bipolar I Disorder . . . with psychotic features,
currently in remission since 2013/14 due to his taking Depakote. His positive
response to the mood stabilizer supports this diagnosis as does his negative
response to antidepressants even though he was depressed. Bipolar I Disorder is a
mental condition which can impair his judgment, stability, and reliability.
***
While this mental condition is currently in remission, he remains vulnerable to
relapses into an agitated depression with weakened reality adherence or
immobilizing depression. Bipolar I Disorder is probably not curable but can usually
be controlled with medication. Stress, however, and the stimulation of strong affect
can override the medication and cause a relapse. If he continues to take his
medication and there are no major upsets or losses in his life, then his prognosis
- 4 -
should be moderately good for avoiding mania and debilitating depressive crises in
the future.
Ex. 6 at 6-7.
The Individual has submitted Exhibit A, a letter dated May 9, 2018, authored by the Doctor
concerning his treatment of the Individual. In this letter, the Doctor states, in pertinent part:
I have seen [the Individual] a total of six times since his initial visit with me on
4.23.13. Other dates include 8.9.13, 3.10.15, 7.14.15, 12.15.17 and 3.13.18. He
had come to me after growing increasing [sic] discouraged with follow up that [sic]
the [] Mental Health Center where he had had three psychiatric hospitalizations.
The last in early 2013 after a "bad break-up". This was characterized by threats to
self and others. I have been working with a diagnosis of Bipolar II disorder and
issues of anger dyscontrol and have treated him with antidepressant medication and
mood stabilizers. His clinical course under my treatment has been unremarkable,
save several lapses in making his follow up appointments, eg, August 2013 to
March 2015 and July 2015 to December 2017 there have been no difficulties in his
treatment. By all measures he appears to be a dedicated father, partner and worker.
I have no way of predicting future acting up or violence.
Ex. A. The Individual also submitted some of the medical records prepared by the Doctor in the
course of treating the Individual’s Bipolar Disorder as Exhibit B.
At the hearing, the Individual acknowledged that he has a Bipolar Disorder. The Individual
presented evidence showing that he understands his disorder, is complying with his treatment,
intends to always comply with his treatment, and is receiving the appropriate treatment for his
disorder; that the treatment has been effective; and that he has a strong support network in place to
monitor him in case he starts to relapse.
The Individual’s mother testified on his behalf at the hearing. She understands that the Individual
is bipolar. Tr. at 22. She testified that she had sought help for the Individual when she became
concerned about his mental health. Tr. at 18. She testified that the Individual has made a lot of
progress, noting that he has a fiancé and three daughters, who he is very involved with. Tr. at 19.
The Individual lives less than a minute away from her and sees her frequently. Tr. at 19. She stated
that she believed that the Individual was not diagnosed appropriately at first.2 Tr. at 22. She also
stated that she did not believe that the Individual received the appropriate medication at first. Tr.
at 39. She testified that the Individual responded well, once he began Depakote, and that he has
been stable since 2013. Tr. at 22, 26, 39. She testified that she had been educated about the
warning signs of depression, mania, and psychosis, Tr. at 26-27, and that she would urge her son
to see the Doctor if she observed any warning signs. Tr. at 27. She further stated that, if she felt it
was urgent, she would take the Individual to the emergency room. Tr. at 27. She testified that she
thinks her son would be able to identify any warning signs and that he would then take appropriate
action. Tr. at 28, 35-36. The Individual’s mother testified that the Individual had recognized that
2 She testified that the Individual was previously being seen by “a rotation of residents.” Tr. at 24. She felt that the
Individual needed to establish a relationship with one physician who would provide more consistent care, so he began
seeing the Doctor in 2013. Tr. at 24-25.
- 5 -
he needed help and sought that help. Tr. at 29. She further testified that the Individual’s family
provides him with a “very strong support system.” Tr. at 32-33, 36. She noted that he has her, his
two siblings, his fiancé, and “a huge extended family” for support. Tr. at 39-40. She also testified
that the Individual’s siblings are “very close” to him and are aware of his bipolar disorder. Tr. at
36.
The Individual’s twin sister testified on his behalf at the hearing, Tr. at 46, stating that she and the
Individual are “extremely close.” Tr. at 46. She testified that she sees him several times a week,
and that they are constantly texting. Tr. at 54. She noted that the Individual is “a great father.” Tr.
at 54. She testified that her brother is now even-tempered and patient, exercises good judgment,
and is “always pretty happy.” Tr. at 54-57, 65. She believes that she knows him so well that she
would quickly realize if there were to be anything wrong with him, Tr. at 60, and she stated that
she would take him to the hospital, if necessary. Tr. at 61. She asserted that, if she noticed any
signs of relapse, she would respond by getting her family involved. Tr. at 65. She testified that
her brother has never complained about side-effects from his medication. Tr. at 65.
The Individual’s fiancé testified on his behalf, stating that she lives with the Individual and has
known him for about eight years. Tr. at 71. The fiancé testified that the Individual is an excellent
father and a dedicated family man. Tr. at 75-76. She further testified that he exercises good
judgment, trustworthiness, and reliability, and that he is level-headed, easy going, and happy. Tr.
at 86. She testified that she is aware of the Individual’s past mental health issues and of his Bipolar
Disorder diagnosis. Tr. at 78. She stated that she is also aware that the Individual takes Depakote,
that he is compliant with his treatment, and that he has never reported any problems with side
effects from his medication to her. Tr. at 78, 86. She testified that she sees him take his Depakote
each morning, Tr. at 86-87, and that if he ever began to exhibit excessive anger, unwillingness to
take his medicine, or any other symptoms, she would contact his support system and the Doctor.
Tr. at 82. She testified that his life is centered around his family and extended family, and that he
has a lot of support from his family. Tr. at 103.
The Individual testified at the hearing that he recognizes that he has a disease, Bipolar Disorder,
that he will always have it, and that he cannot take it lightly.3 Tr. at 118, 120. He testified that he
had been hospitalized for his disorder in 2009, and has been receiving treatment since then. Tr. at
98-99. He stated that he has been seeing the Doctor for several years now, Tr. at 99-100, and that
he has been taking Depakote since 2011. Tr. at 100. He testified that Depakote does not have any
side effects for him.4 Tr. at 100-101, 131. He testified that he takes his medication as prescribed,
Tr. at 101, 105, and that when he has forgotten to take his Depakote, he noticed mild symptoms.
Tr. at 128. He stated that he sees the Doctor every six months. Tr. at 101. He stated that he has a
number of family members who he can talk to about his disorder, and that he has a broad range of
family and friends that he can rely on. Tr. at 104. He further stated his belief that he would
recognize when he needed help, and would be willing to ask for help, if necessary. Tr. at 105. He
testified that if he needed help he would contact his sister or mother, and if they were not available,
3 The Individual subsequently testified that he hoped that someday he might be able to go without medication, hoping
that he might “outgrow” the disease or that researchers might find a cure. Tr. at 132. He acknowledged, however,
that his is currently dependent on his medication. Tr. at 132.
4 Initially, Depakote kept him up at night when he took his pills in the evening, however, this side effect has been
avoided by taking his pills in the morning, as advised by the Doctor.
- 6 -
he would take himself to the hospital. Tr. at 105. He asserts that, since his hospitalization, he has
not experienced any thoughts of harming himself or others, Tr. at 105-106, although the Individual
subsequently acknowledged having suicidal feelings in 2013, during legal proceedings concerning
the custody of two of his children. Tr. at 129. The Individual testified that he exercises at the
recommendation of the Doctor. Tr. at 131-132.
The Psychologist observed the testimony of the other witnesses before he testified. He testified that
the Individual appeared to be “very honest” and “undefensive.” Tr. at 139. The Psychologist
testified that the Individual’s psychological testing indicated that the Individual has experienced
mania. Tr. at 140-141. The Psychologist noted that the type of mania experienced by the Individual
made the Individual “feel grateful for the medicine, because it takes away the anger, the disturbing
thoughts, that [he does not] want to feel,” therefore, the Psychologist opined, the Individual is more
likely to comply with his treatment.” Tr. at 142. The Psychologist testified that “I don't have as
much concern about relapses at this point,” although he noted that he cannot rule out the possibility
of relapse. Tr. at 144, 145. The Psychologist further noted that a relapse “could be serious because
of the mean thoughts that he had when he did have that maybe seven or so years ago.” Tr. at 144.
The Psychologist noted that the fact that he has had seven years since having such thoughts is a
positive prognostic sign for the Individual.5 Tr. at 144. The Psychologist further opined that the
Individual’s prognosis is “good.” Tr. at 145, 147, 153. He noted that the Individual’s twin sister
provides him with a good support system, and that his support system is more than adequate. Tr. at
146, 154. The Psychologist noted that there were three prognostic indicators in the Individual’s
favor: (1) He has had seven years without a relapse; (2) the type of mania that he has is less likely
to result in a relapse; and (3) he adhered to his treatment regime without interruption. Tr. at 149.
V. ANALYSIS
The record clearly shows that the Individual has Bipolar Disorder. The Individual’s Bipolar
Disorder, when symptomatic, has caused severe impairment of his judgment, reliability, and
trustworthiness. However, the Individual’s Bipolar Disorder has responded to treatment, and he
currently does not exhibit any defects or impairment of his judgment, reliability, and
trustworthiness. Accordingly, the only issue before me is whether the risk of relapse, and the
potential consequences of a relapse, present an unacceptable risk to the national security and the
common defense. While the worst case scenario, i.e., the Individual experiencing another full-
blown manic episode, would present a danger to the national security and the common defense, the
testimony of a DOE consultant psychologist, who evaluates individuals for suitability to access to
nuclear information and material, indicates that this risk is relatively low.
Guideline I identifies five conditions that can mitigate security concerns arising from psychological
conditions, three of which apply to the present case. Section 29(a) provides that mitigation might
result when “the identified condition is readily controllable with treatment, and the individual has
demonstrated ongoing and consistent compliance with the treatment plan.” Section 29(b) provides
that mitigation might result when “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.”
5 While there is some evidence of issues prior to 2013, there is no evidence in the record that the Individual has
suffered from any such issues since he began his Depakote in 2013 (a period of approximately 5 years).
- 7 -
Section 29(c) provides that mitigation might result when a “recent opinion [is rendered] 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.”
In the present case, the Individual has clearly demonstrated ongoing and consistent compliance
with his treatment plan, which has resulted in a period of seven years without further symptoms.
A DOE contractor psychologist has found that the Individual has been receiving treatment for his
condition which is amenable to treatment, that his condition is under control and in remission, that
his prognosis is favorable, and that there is a low probability of recurrence.
Accordingly, I find that concerns raised under Guideline I by the Individual’s Bipolar Disorder
have been sufficiently resolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline I. After
considering all the evidence, both favorable and unfavorable, in a common sense manner, I find
that the Individual has sufficiently mitigated the concerns raised under Guideline I. Accordingly,
the Individual has demonstrated that granting his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual’s security clearance should be granted. The National Nuclear Security Administration
may seek review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R.
§ 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals