PSH-18-0051

*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 22, 2018 ) Case No.: PSH-18-0051
)
_________________________________________ )
Issued: September 25, 2018
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (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 not be restored.
I. BACKGROUND
The Individual’s position at a DOE facility requires her to possess a security clearance. During a
routine reinvestigation for her security clearance, the Individual revealed that she had several
psychological diagnoses, including some with serious physical symptoms. The local security office
(LSO) conducted a personnel security interview (PSI) with the Individual in November 2017 to try
to resolve the potential security issues raised by her psychiatric history. Ex. 3. The LSO later
referred the Individual to a DOE Psychologist (the Psychologist) for a psychological evaluation.
The Psychologist’s report opined that the Individual’s psychological condition could adversely
affect her fitness to hold a security clearance. The Local Security Office (LSO) began the present
administrative review proceeding by issuing a Notification Letter to the Individual informing her
that she was entitled to a hearing before an Administrative Judge in order to resolve the substantial
doubt regarding his eligibility to continue holding 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 June 22, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), the Individual presented the testimony of eight witnesses and testified on her own behalf.
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.
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The LSO presented the testimony of the DOE psychologist who had evaluated the individual. See
Transcript of Hearing, Case No. PSH-18-0051 (hereinafter cited as “Tr.”). The LSO submitted
eight exhibits, marked as Exhibits 1 through 8 (hereinafter cited as “Ex.”). The Individual submitted
14 exhibits, marked as Exhibits A through N.
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).
Guideline I, Psychological Conditions, provides 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). The LSO alleges that a DOE
Psychologist evaluated the Individual and concluded that her psychological condition remained
unstable and could impair her judgment, reliability, stability, and trustworthiness. Ex. 1 at 1.
Accordingly, these allegations adequately justify the LSO’s invocation of Guideline I in the
Notification Letter.
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. See 10 C.F.R. § 710(c) (factors to be considered by
Administrative Judge in making a decision as to an individual’s eligibility to possess or retain a
security clearance).
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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
The Individual has a history of psychological disorders going back over twenty years. During
reinvestigation to continue holding her security clearance, the Individual revealed to investigators
that she had been suffering from pseudo-seizures for over a year.2 Ex. 5 at 2. Medical records
indicated that the Individual had been previously diagnosed with Obsessive-Compulsive Disorder,
Attention Deficit/Hyperactivity Disorder, Bipolar I Affective Disorder (Bipolar I), Conversion
Disorder with Pseudo-Seizures, Adjustment Disorder, and Mild Anxiety and Depression, among
other diagnoses. Ex. 5 at 2; Ex. 6 at 10. Following a PSI, the Individual was referred to a DOE
Psychologist for evaluation. Ex. 4. The Psychologist conducted a series of tests, as well as an in-
person evaluation of the Individual. The Psychologist believed that the Individual may suffer from
Bipolar II Affective Disorder (Bipolar II) and not Bipolar I since she found no evidence that the
Individual had ever experienced a manic episode.3 Ex. 6 at 11. She concluded that the Individual
had made progress with her pseudo-seizures, though she still experienced them from time to time.
Ex. 6 at 11. Nonetheless, the Psychologist opined that the Individual remained symptomatic and
had experienced severe reoccurrences and relapses of many of the diagnosed psychological
problems. Ex. 6 at 10. She also opined that the Individual’s “presentations of dissociation,
emotional and behavioral lability, appearance of inconsistent sense of self, susceptibility to stress-
induced psychological and physical symptoms, insufficient coping and defense mechanisms, and
interpersonal feelings of persecution/mistrust, form a constellation of symptoms which could
impair her judgment, stability, reliability and trustworthiness.” Ex. 6 at 11.
At the hearing, the Individual presented the testimony of several character witnesses. Each testified
to her good character and opined that she did not appear to suffer from psychological symptoms.
Tr. at 17–18, 21, 33–35, 43–47, 70–73, 79–80, 99–102.
The Individual’s psychotherapist testified that the Individual was much improved since she began
working with him over a year and a half prior to the hearing. Tr. at 160. He stated that he had used
several modalities, including some that have not been subject to peer review or empirical testing,
to help the Individual uncover and process suppressed memories. Id. at 110, 122, 132–33. He stated
that the Individual self-reports fewer seizures. Id. at 128. He believes his therapy has improved the
Individual’s life and that “[s]he’s doing very, very well.” Id. at 123. However, the psychotherapist
testified that, though the Individual had last seen him a week before the hearing, her previous
appointment had been three months earlier and her sessions had been sporadic since January 2018.
Id. at 130–31.
2 The Individual described her pseudo seizures as events where her body shakes and she feels nauseated. Ex 5 at 2.
These pseudo seizures are related to the Individual’s migraine headaches which can be triggered by stress and lack of
sleep. Ex. 5 at 2. As of the date of the hearing, the Individual testified that these pseudo seizures are much less frequent
and severe than at the time of her security clearance reinvestigation. Tr. at 261. As of the hearing, the Individual report
having had only three pseudo seizures in 2018, all of them mild. Id. at 261.
3 However, the Psychologist noted that, in her opinion, the Individual did not meet the all of the criterion for a diagnosis
of Bipolar II Affective Disorder. Ex. 6 at 11.
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The psychotherapist testified that he intentionally underdiagnoses his patients so that they can avoid
the external consequences of their conditions. Tr. at 133–34. In this regard, the psychotherapist
testified that when he diagnosed the Individual, he agreed with the Psychologist’s Bipolar II
diagnosis but, in order to prevent problems in her life, diagnosed the Individual with the less serious
condition of Adjustment Disorder instead. Id. at 133–34.
The Individual’s EAP counselor testified that he had seen the Individual for seven sessions. Tr.at
166. The counselor testified that he worked with the Individual on skill building, rather than
therapy, including deep breathing coping skills. Id. at 177. In January or February of 2018, he
referred the Individual to a doctor for treatment of her Bipolar illness. Id. at 181–82. He believed
the Individual had, by the hearing date, been on medication prescribed by the referred doctor for
several months. Id. at 183.4
The Individual testified that her seizures are much calmer now and that she had only had three in
2018. Tr. at 261. They lasted only a matter of seconds and she was able to speak over the
convulsions. Id. at 234–35. She is physically active, taking walks and going to the site fitness center
while on breaks during the workday. Id. at 215. She testified that she has not had blackouts at work.
Id. at 224. She testified to her belief that her PSI was videotaped and that a hypnotherapist had
touched her inappropriately during a session. Id. at 245–46, 253. She testified that she was taking
her medications as prescribed. Id. at 265, 272. She further testified that she felt well-adjusted and
that her life was going “wonderfully.” Id. at 274.
The Individual presented testimony from an independent psychologist who had evaluated her for
about seven hours over multiple sessions. Tr. at 187. The Individual’s psychologist testified that
the Individual had made good progress over the previous couple of years and that she agreed with
the DOE Psychologist’s diagnosis of Bipolar II. Id. at 191. She testified that Bipolar II is a lifelong
condition. Id. at 207. The Individual’s psychologist had no concerns about the Individual’s
reliability, however, she did testify that a good prognosis was dependent on the Individual’s
continuing to attend therapy and take her medication as prescribed. Id. at 195. Without those
factors, the prognosis was more guarded. Id. at 201. She also testified that the Individual would
need to remain in compliance with those conditions for six consecutive months to demonstrate the
stabilized mood required for a good prognosis. Id. at 200–01.
The DOE Psychologist testified that, after hearing all of the day’s testimony, she stood by her
assessment of the Individual as having symptoms of Bipolar II.5 Tr. at 290. She acknowledged that
the Individual had worked hard to overcome her psychological challenges. Tr. at 288. However she
was unable to give the Individual a good prognosis as of the hearing date:
4 The record indicates that the Individual began seeing the doctor for pharmaceutical treatment of her Bipolar illness
on July 23, 2018. Individual’s Closing Statement at 3; Ex. N at 2–3.
5 The Individual’s manner during her own testimony aligns with symptoms of Bipolar II described in the DOE
Psychologist’s report. Her testimony bounced from topic to topic and was delivered in rapid, high pitched speech. Cf.
Ex. 6 at 9. On several occasions, the court reporter attempted to pause the Individual’s testimony so she could ask her
to slow her speech. Id. at 231, 243. See also id. at 264, 283. At one point, the court reporter could not pause the
Individual’s flow of speech without raising her voice sharply. The Individual’s mood was excited and cheerful, despite
the serious nature of the topics she was discussing.
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I wish I could say the four to six weeks on the medication is sort of good enough,
but I can't. It's just—it's like sometimes with the alcohol issues or whatever, you
really have to see over a longer period of time to be able to say this is a—this person
really has a good prognosis. I could anticipate or speculate, but I probably shouldn't.
So I won't.
Id.at 289. She did, however, testify that the Individual’s prognosis could be fair to good if she
continued with a treatment plan that included medication and therapy. Id. at 285–88, 290–91. While
the DOE Psychologist did not disagree with the Individual’s psychologist that six months of
treatment may be enough to demonstrate stability for a good prognosis of the Individual’s Bipolar
illness, she testified that she would prefer a year of consistent treatment for a good prognosis. Id.
at 291.
V. ANALYSIS
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a common sense manner. Because of the strong presumption against restoring
security clearances, I must deny restoration if I am not convinced that the LSO’s security concerns
have been mitigated such that restoring the Individual’s clearance is not an unacceptable risk to
national security.
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.”
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.” Section 29(d) provides that mitigation might result
when “the past psychological/psychiatric condition was temporary, the situation has been resolved
and the individual no longer shows indications of emotional instability” Finally, Section 29(e)
provides that mitigation might result when “there is no indication of a current problem.” My
discussion of the relevant factors is given below.
A. Section 29(a)—Consistent Compliance with Treatment Plans
The Individual is currently medicated for Bipolar II, but did not begin treatment for that condition
until one month before her hearing, even though she had been referred for treatment over six
months prior to establishing care with the treating physician. The Individual has not been regularly
attending sessions with her psychotherapist. Both psychologists wanted to see at least six months
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of treatment, including medication and psychotherapy, to show stability; one wanted a year. It is
simply too soon to say that the Individual has demonstrated ongoing and consistent compliance
with her treatment plan.
B. Sections 29(b) and 29(c)—Mental Health Professional Opinions
The Individual voluntarily entered psychotherapy and sought treatment for her pseudo seizures.
However, that treatment had not been regular since January 2018. As of the hearing date, the
Individual had seen her psychotherapist once in the previous few months. The Individual’s
psychologist stipulated that a good prognosis was dependent on continued treatment with therapy
and medication for at least six months. At the time of the hearing, the Individual had not established
that she was attending therapy regularly and she had not been medicated for the six months required
for her psychologist to find that the Individual had a good prognosis. The DOE Psychologist also
could not give the Individual a favorable prognosis at the time of the hearing. She could not find
that the Individual’s symptoms were under control or in remission.
The Individual’s psychotherapist admitted to modifying his patients’ diagnoses for the purpose of
preventing adverse consequences in their lives. He admitted to doing this for the Individual by
diagnosing her with a condition that is less serious than the one he truly believed afflicted her.
While I understand his motives in doing this, his credibility is lessened and, therefore, I cannot
afford significant weight to his testimony that the Individual is doing well. The EAP counselor did
not offer a prognosis for the Individual or an opinion on the state of her Bipolar illness.
Upon consideration of the above evidence, I cannot find that the Individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental health professional.
Nor can I find that a duly qualified mental health professional employed by the U.S. Government
has opined that the Individual’s condition is under control or in remission.
C. Section 29(d) and 29(e)—Resolution or No Current Problem
Just as the character witnesses described, the Individual presented as a kind, optimistic person who
is committed to improving her mental health. However, as the security concerns at issue here are
medical in nature, I cannot afford significant weight to their testimony. Further, the Individual’s
psychologist testified that the Individual suffers from a lifelong condition and that the Individual
cannot yet be considered stabilized. Therefore, while I find that the character witnesses attested to
the Individual’s good character, this evidence does not outweigh the significant evidence that the
Individual has a significant psychological illness that raises a security concern. 6
VI. CONCLUSION
The Individual has worked hard to overcome extraordinary difficulties and to improve her life. She
appears truly committed to this process and her early efforts thus far are encouraging.
Unfortunately, as described above, those efforts do not yet rise to the level of mitigation under the
6 I have also considered the factors listed in 10 C.F.R. § 710.7(c) in my deliberation. I find that none of these factors
sufficiently mitigate the significant security concerns raised by the Individual’s psychiatric history as described in the
Notification Letter,
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Adjudicative Guidelines. Thus, for the foregoing reasons, I find that the Individual has not
mitigated the security concerns raised under Guideline I.
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for a security clearance under Guideline I of the
Adjudicative Guidelines. I further find that the individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that restoring DOE access authorization to the Individual
“will not endanger the common defense and security and is clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not restore access
authorization to the Individual 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.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals