19322 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices 

1On November 15, 2010, the Government timely 

filed its exhibits in compliance with the August 6, 

2010 Prehearing Ruling. Prior to hearing, 

Respondent did not file any exhibits with the ALJ, 

and the Government represents, and Respondent 

does not challenge, that Respondent did not serve 

on the Government any of the seven documents 

listed in his August 3, 2010, supplemental 

prehearing statement. 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 10–59] 

Daniel B. Brubaker, D.O.; Decision and 

Order 

On April 29, 2011, Administrative 

Law Judge (ALJ) Timothy D. Wing 

issued the attached recommended 

decision. Neither party filed exceptions 

to the decision. 

Having reviewed the record as a 

whole, I have decided to adopt the ALJ’s 

recommended rulings, findings of fact, 

and conclusions of law in their entirety. 

Accordingly, I also adopt the ALJ’s 

recommended order. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as 28 CFR 

0.100(b), I hereby order that the 

application of Daniel B. Brubaker, D.O., 

for a DEA Certificate of Registration as 

a practitioner, be, and it hereby is, 

denied. This order is effective 

immediately. 

Dated: March 16, 2012. 

Michele M. Leonhart, 

Administrator. 

Frank Mann, Esq., for the Government 

Ronald Kaldor, Esq., for the Respondent 

Recommended Ruling, Findings of Fact, 

Conclusions of Law and Decision of the 

Administrative Law Judge 

I. Introduction 

A. The Order To Show Cause 

Timothy D. Wing, Administrative Law 

Judge. This proceeding is an 

adjudication pursuant to the 

Administrative Procedure Act (APA), 5 

U.S.C. § 551 et seq., to determine 

whether the Drug Enforcement 

Administration (DEA) should deny a 

physician’s application for a DEA 

Certificate of Registration (COR) as a 

practitioner pursuant to 21 U.S.C. 

§ 823(f). Without this registration 

Respondent, Daniel B. Brubaker, D.O. 

(Respondent), of Fresno, California, will 

be unable to lawfully prescribe, 

dispense or otherwise handle controlled 

substances in the course of his practice. 

On May 27, 2010, the DEA Deputy 

Assistant Administrator, Office of 

Diversion Control, issued an Order to 

Show Cause (OSC) to Respondent, 

giving Respondent notice of an 

opportunity to show cause as to why the 

DEA should not deny Respondent’s 

application for registration on grounds 

that his registration would be 

inconsistent with the public interest as 

that term is used in 21 U.S.C. § 823(f). 

In substance, the OSC alleges that 

Respondent prescribed controlled 

substances to patients for no legitimate 

medical purpose and with ‘‘extreme 

deviations from the standard of care.’’ 

The OSC further alleges that 

Respondent was arrested for driving 

under the influence of controlled 

substances on June 13, 2008, and that 

toxicology results revealed the presence 

of the controlled substances marijuana, 

modafinil, oxazepam and temazepam, 

for which Respondent lacked a 

prescription. 

B. Prehearing Proceedings 

Because conduct by Respondent’s 

counsel prior to hearing played a 

prominent role in the constriction of 

evidence that Respondent was 

permitted to present at hearing, I 

address the prehearing proceedings in 

some detail. 

Respondent, through his counsel 

Ronald Kaldor, Esq., requested a hearing 

on June 25, 2010. On July 6, 2010, I 

issued an Order for Prehearing 

Statements directing the Government to 

file a prehearing statement by July 13, 

2010, and Respondent to file a 

prehearing statement by July 20, 2010. 

The Order for Prehearing Statements 

itemized numerous instructions 

designed to give the parties notice, inter 

alia, of the grounds upon which claims 

and defenses would be based, the 

identity and location of witnesses and 

the contents of their testimony, and the 

exhibits each party intended to 

introduce into evidence. The overriding 

purpose of prehearing statements in 

registration proceedings pursuant to 

section 304 of the Controlled Substances 

Act (CSA) is to provide parties with an 

opportunity to fairly and adequately 

prepare for hearing. See generally CBS 

Wholesale Distribs., Inc., 74 Fed. Reg. 

36,746 (DEA 2009). 

The Government timely filed its 

prehearing statement on July 13, 2010. 

Respondent filed a document entitled 

‘‘Respondent’s Prehearing Statements’’ 

on July 20, 2010. Although filed within 

the deadline for exchanging prehearing 

statements, this filing was deficient in 

numerous regards: Respondent failed to 

identify a single witness, summarize 

witness testimony, or describe any 

documents to be potentially offered as 

exhibits. Arguing that Respondent had 

impliedly withdrawn his request for a 

hearing by failing to file a compliant 

prehearing statement, the Government 

moved to terminate proceedings on July 

22, 2010. After providing Respondent an 

opportunity to respond to the 

Government’s motion, I found that 

although Respondent’s initial 

prehearing statement of July 20, 2010, 

was ‘‘substantially deficient and does 

not comply with the directions set forth 

in the Order for Prehearing Statements 

or 21 C.F.R. § 1316.57, I do not find at 

this time that Respondent’s actions 

constitute a waiver of hearing.’’ (Mem. 

to Counsel and Order, July 30, 2010.) I 

ordered Respondent to file a compliant 

supplemental prehearing statement no 

later than August 3, 2010. 

On August 3, 2010, Respondent filed 

a supplemental prehearing statement. 

This document, too, was deficient in 

numerous respects. For instance, 

Respondent vaguely outlined the 

testimony of his witnesses instead of 

‘‘stat[ing] what the testimony will be 

rather than merely listing the areas to be 

covered,’’ as required by the Order for 

Prehearing Statements. Respondent also 

failed to provide addresses for three 

witnesses. In addition, although the 

Order for Prehearing Statements 

directed that ‘‘[i]f Respondent intends to 

testify, Respondent must be identified 

as a witness, and a summary of the 

testimony * * * must be provided,’’ 

Respondent’s August 3, 2010 

supplemental prehearing statement did 

not list Respondent as a witness. 

I issued a Prehearing Ruling on 

August 6, 2010. The Prehearing Ruling 

noted that any testimony not 

summarized in prehearing statements, 

and any documents not listed therein, 

could be excluded at hearing. The 

Prehearing Ruling also set a deadline of 

October 4, 2010, for the filing of 

supplemental prehearing statements; set 

November 8, 2010, as the deadline for 

filing any anticipated motions and 

exchanging documents intended to be 

offered as exhibits at hearing; and set 

November 15, 2010, as the deadline for 

providing the Administrative Law Judge 

(ALJ) with copies of all such 

documents.1

On October 28, 2010, the Government 

filed a Motion of Government to File 

Supplemental Prehearing Statement Out 

of Time, seeking to eliminate several 

Government exhibits and add the 

curriculum vitae (CV) of the 

Government’s expert witness. The 

Government represented that 

Respondent did not object, and I granted 

the Government’s motion on October 29, 

2010. 

On November 12, 2010, a telephonic 

Supplemental Prehearing Conference 

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2The July 6, 2010 Order for Prehearing 

Statements states: ‘‘If Respondent intends to testify, 

Respondent must be listed as a witness, and a 

summary of the testimony * * * must be 

provided.’’ 

3Counsel also suggested that James Hambuechen, 

previous Government counsel, requested a 

subpoena for Respondent’s testimony. The record, 

however, reveals no such subpoena or request. 

4Ms. Fu’s name appears as a potential witness in 

Respondent’s August 3, 2010 ‘‘Supplemental 

Respondent’s Prehearing Statements.’’ 

5The July 6, 2010 Order for Prehearing 

Statements set forth a deadline of July 20, 2010, for 

the filing of Respondent’s prehearing statement. Per 

the August 6, 2010 Prehearing Ruling, supplemental 

prehearing statements were due on October 4, 2010. 

6Counsel for Respondent had indicated that ‘‘I 

will be out of my office on vacation . . . from 

November 22 to November 29 and will not be able 

to access any communications.’’ (Resp’t Mot. Late 

Filing, Nov. 17, 2010, at 2.) Under the 

circumstances, I declined to construe this unsworn 

statement as a motion to extend the three-day 

deadline for responding to motions, established by 

the August 6, 2010 Prehearing Ruling. Even so 

construed, I found there was no good cause for 

extending the filing deadline. First, counsel for 

Respondent’s duty of diligence requires that he 

designate alternate counsel during his anticipated 

absence. Second, ‘‘if one can find time to take 

vacation, he can also find time to file a . . . 

pleading . . ..’’ Kamir Garces-Mejias, 72 Fed. Reg. 

54,931–02, 54,933 (DEA 2007). 

7See Mem. Order, Nov. 30, 2010, at 14 n.10. At 

hearing Respondent only offered, and subsequently 

withdrew, Respondent’s CV. I indicated the 

document would in any case be excluded in 

accordance with an earlier ruling. (Tr. 299–300.) 

Respondent did not provide a copy of the CV to this 

tribunal, and consequently no copy is included in 

the record. 

8Respondent’s testimony at hearing spans 

approximately 181 transcript pages. (See Tr. 300– 

481.) 

was held with Government counsel and 

Respondent’s counsel. At the 

Supplemental Prehearing Conference, 

counsel for Respondent withdrew 

Respondent’s expert witness, Thomas 

O’Laughlin, M.D., and indicated 

Respondent’s desire to obtain a 

replacement expert. Respondent also 

indicated his desire to call Respondent 

to testify as a witness, despite the fact 

that Respondent’s prehearing statement 

and supplemental prehearing statement 

did not list Respondent as a witness.2

Counsel for the Government indicated, 

however, that from previous 

conversations with counsel, the 

Government was on notice of 

Respondent’s intention to call 

Respondent as a witness.3

In addition, counsel for Respondent 

stated that Respondent no longer 

intended to call Karen Fu, LMFT, as a 

witness.4 Finally, counsel for 

Respondent stated that he intended to 

provide addresses for Respondent’s 

witnesses Stephen Duvall, Anita Peralda 

and ‘‘Jerry MCDonadl’’ [sic] (Resp’t 

Supp. PHS at 2), and that he intended 

to indicate with specificity, albeit 

belatedly by approximately forty days,5

their proposed testimony. 

Counsel for Respondent further 

indicated his intention to file a (second) 

supplemental prehearing statement on 

Monday, November 15, 2010, embracing 

the changes and updates to witness 

information discussed supra. Counsel 

for Respondent acknowledged that the 

August 6, 2010 Prehearing Ruling set 

the deadline for supplemental 

prehearing statements at October 4, 

2010, and set the deadline for filing 

motions at November 8, 2010. Counsel 

for Respondent accepted responsibility 

for missing these deadlines, but 

attributed this failure to a lack of 

familiarity with the ‘‘federal rules.’’ 

I issued a Supplemental Prehearing 

Ruling on November 12, 2010, 

summarizing the Supplemental 

Prehearing Conference and ordering 

Respondent to file a proposed second 

supplemental prehearing statement, 

accompanied by a separate motion to 

accept late filing supported by a 

statement of good cause, no later than 

November 15, 2010. 

On Wednesday, November 17, 2010, 

Respondent filed, two days out of time, 

a document entitled ‘‘Second 

Supplemental Respondent’s Prehearing 

Statement,’’ along with a Motion to 

Accept Late Filing, also filed two days 

out of time. On November 19, 2010, the 

Government filed its Opposition to 

Respondent’s Motion to Accept Late 

Filing, Motion to Terminate Proceedings 

or, in the alternative, Motion In Limine. 

Pursuant to the August 6, 2010 

Prehearing Ruling, Respondent had 

three business days after service of the 

Government’s motions to file a 

response. Respondent did not respond.6

Ruling on Respondent’s Motion to 

Accept Late Filing of his proposed 

supplemental prehearing statement on 

November 30, 2010, I found that 

Viewed as a whole, Respondent’s failures 

are serious and present the specter of real 

prejudice to the Government. Because 

Respondent’s motion to accept late filing was 

itself filed late without good cause, because 

the motion was not supported by good cause, 

and because the proposed second 

supplemental prehearing [statement] is 

noncompliant with the Order for Prehearing 

Statements, I reject the filing of Respondent’s 

second supplemental prehearing statement. 

(Mem. and Order, Nov. 30. 2010, at 9.) 

Turning to the Government’s Motion 

to Terminate, I found that ‘‘although the 

deficiencies in Respondent’s counsel’s 

handling of Respondent’s case are 

indeed serious, they cannot support a 

finding that Respondent has actually 

withdrawn or waived his request for a 

hearing.’’ (Id. at 11.) 

Addressing the Government’s Motion 

in limine, I found that fairness and 

Agency precedent required the 

constriction of the evidence that 

Respondent could permissibly present 

at hearing, in light of Respondent’s 

numerous, repeated and prejudicial 

failures to comply with the Order for 

Prehearing Statements and subsequent 

Orders, as detailed above and analyzed 

in my November 30, 2010 ruling. I 

therefore ordered that with the 

exception of Respondent himself, no 

witness would be permitted to testify 

who was not named either by the 

Government in its prehearing statement, 

as duly supplemented on October 28, 

2010, or by Respondent in Respondent’s 

supplemental prehearing statement filed 

August 3, 2010; that Respondent would 

not be permitted to introduce 

documentary evidence regarding the 

prescribing, dispensing or administering 

of controlled substances to any of the 

patients named in the Government’s 

prehearing statement, as supplemented; 

that Respondent would not be permitted 

to introduce documentary evidence that 

he legally consumed, or had legal 

authority to possess and consume, the 

controlled substances found in his 

system following his arrest on June 13, 

2008; and that Respondent would not be 

permitted to introduce any documentary 

evidence of any kind or manner, absent 

a specific showing of good cause at 

hearing. Respondent was not precluded 

from seeking admission of documents 

related to issues such as witness 

credibility or rebuttal of evidence.7

On December 3, 2010, Respondent 

filed Respondent’s Motion In Limine, 

seeking to prevent the Government’s 

expert witness, Dr. James L. Gagne ́, from 

testifying at the hearing. In support of 

his motion, Respondent stated he 

interpreted my November 30, 2010 

ruling on the Government’s motion in 

limine to ‘‘limit the testimony of 

Respondent in his defense,’’ arguing 

that the Government’s expert should not 

be permitted to testify because 

otherwise ‘‘Respondent will be 

precluded from a fair opportunity to 

defend himself and from receiving his 

due process rights . . . .’’ (Resp’t Mot. in 

Limine, Dec. 3, 2010, at 1.) Inasmuch as 

Respondent filed his motion two 

business days before the hearing, 

Respondent’s motion was resolved on 

the record at the beginning of the 

hearing. After giving each party an 

opportunity to be heard, I denied 

Respondent’s motion as meritless.8

(Transcript (Tr.) 21.) 

Following prehearing procedures, a 

hearing was held in Fresno, California, 

between December 7, 2010, and 

December 8, 2010, with the Government 

represented by counsel and Respondent 

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9 In a December 27, 2010 letter to counsel, the 

Office of Administrative Law Judges advised that 

briefs would be due by 4 p.m. Eastern Daylight 

Time on January 25, 2011. The Government timely 

filed its brief. Respondent filed his brief on January 

26, 2011, and on January 27, 2011, filed a motion 

to accept the late filing. In the absence of an 

objection from the Government, and inasmuch as it 

appeared no prejudice would result, I granted 

Respondent’s motion. (See Ruling on Resp’t Mot. to 

Accept Late Filing, Apr. 28, 2011.) 

10 In addition to the evidence discussed in this 

Section, additional evidence and findings of fact are 

discussed in later Sections of this Recommended 

Decision. 

11 In the case of a patient using marijuana or other 

illicit drugs, Dr. Gagne ́ ‘‘would take 100 percent 

full-fledged addiction history.’’ (Tr. 56–57.) 

12As for the amount of time it takes to gather this 

information from the patient, Dr. Gagne ́ testified 

that ‘‘I am very much of an outlier, so I take longer 

than most of my colleagues. And it takes me one 

or two hours [which is] not the standard of practice, 

that’s how I do it.’’ (Tr. 206.) Moreover, it is not 

necessarily required or advisable to obtain all this 

patient information at once or in a single visit. (Tr. 

206.) 

represented by counsel. Both parties 

called witnesses to testify and both had 

the opportunity to introduce 

documentary evidence, although the 

evidence Respondent was ultimately 

permitted to introduce was limited by 

my November 30, 2010 ruling as noted 

above. After the hearing, both parties 

filed proposed findings of fact, 

conclusions of law, and argument.9 All 

of the evidence and post-hearing 

submissions have been considered, and 

to the extent the parties’ proposed 

findings of fact have been adopted, they 

are substantively incorporated into 

those set forth below. 

II. Issue 

Whether the record establishes by 

substantial evidence that Respondent’s 

application for a DEA COR, assigned 

control number W09177610C, should be 

denied because Respondent’s 

registration would be inconsistent with 

the public interest as that term is used 

in 21 U.S.C. § 823(f). 

III. Evidence and Incorporated 

Findings of Fact 10

I find, by a preponderance of the 

evidence, the following facts: 

A. Stipulated Facts 

Respondent applied for a DEA 

registration as a practitioner in 

Schedules II through V on or around 

August 26, 2009. (ALJ Ex. 4.) 

Respondent surrendered his previous 

DEA registration on August 21, 2008. 

(Id.) 

B. The Government’s Evidence 

DEA Diversion Investigator Jack L. 

Lewis (DI Lewis) has been a DEA 

Diversion Investigator for five years. (Tr. 

271.) DI Lewis received training as a 

diversion investigator at a DEA training 

facility in Quantico, Virginia. (Tr. 272.) 

Dr. James Laurent Gagne ́ (Dr. Gagne ́) 

is a physician. (Tr. 27.) He resides in 

Valley Village, California and received a 

bachelor’s degree from Columbia 

University and a medical degree from 

Albert Einstein College of Medicine of 

Yeshiva University in Bronx, New York. 

(Gov’t Ex. 4.) He is board certified in 

internal medicine, addiction medicine 

and pain medicine and presently sees 

several hundred patients. (Tr. 28.) 

Approximately one third of them are 

pain management patients. (Tr. 197.) He 

estimates that he prescribes opiates to 

approximately half of his pain patients. 

(Tr. 203.) 

Among other certifications, Dr. Gagne ́

holds Diplomates from the National 

Board of Medical Examiners and the 

American Board of Internal Medicine. 

(Gov’t Ex. 4; see Tr. 29.) He is certified 

in addiction medicine by the American 

Society of Addiction Medicine, and 

holds a Diplomate from the American 

Board of Pain Medicine. (Gov’t Ex. 4; 

see Tr. 31.) Dr. Gagne ́ is a member of 

nineteen professional associations, 

including the International Association 

for the Study of Pain, the American Pain 

Society, the Western Pain Society, the 

American Association for Pain 

Medicine, the American Society for 

Addiction Medication and the 

California Society for Addiction 

Medicine. (Gov’t Ex. 4.) 

Dr. Gagne ́ completed an internship 

and his first medical residency at 

Lincoln Hospital, Albert Einstein 

College of Medicine between 1973 and 

1975. (Gov’t Ex. 4; Tr. 32.) He completed 

a second residency at KaiserPermanente Medical Center in Santa 

Clara, California in 1976. (Gov’t Ex. 4.) 

Between 1976 and the present, Dr. 

Gagne ́ has served in a variety of 

positions ranging from Clinical Medical 

Director, UCLA Pain Control Unit in Los 

Angeles, to Chairman of the Department 

of Medicine at the Verdugo Hills 

Hospital in Glendale, California. (Gov’t 

Ex. 4; see Tr. 32–34.) 

Presently, Dr. Gagne ́ is an associate 

physician at a Glendale, California 

primary care internal medicine group 

and a consulting physician at a Malibu, 

California recovery home. (Gov’t Ex. 4.) 

He previously taught as an Assistant 

Professor of Family Medicine at USC 

Keck School of Medicine from 2000 to 

2008. (Gov’t Ex. 4; Tr. 30.) Dr. Gagne ́ has 

also given numerous lectures, authored 

various publications and participated in 

continuing medical education programs. 

(Gov’t Ex. 4; Tr. 35–36.) He has served 

as an expert reviewer for the California 

Medical Board and has served as an 

expert witness on two cases for the 

United States Department of Justice. (Tr. 

36–39.) 

Dr. Gagne ́ was qualified and I have 

accepted him as an expert witness, 

without objection, in the profession of 

internal medicine, addiction medicine 

and pain management medicine in the 

State of California. (Tr. 39–40; Gov’t Ex. 

4.) 

DEA Investigation of Respondent’s 

Prescribing Practices 

Dr. Gagne ́ testified to being familiar 

with California and federal law 

regarding the prescribing of controlled 

substances. (Tr. 40.) To issue a 

prescription for controlled substances 

within the usual course of a physician’s 

professional practice, there must be a 

genuine and valid physician-patient 

relationship. (Tr. 40–41.) The physician 

must keep a medical record, determine 

the patient’s history and symptoms, 

conduct a physical examination and 

document laboratory findings. (Tr. 41.) 

When prescribing drugs with sideeffects, the physician must make a riskbenefit assessment. (Tr. 41.) Standards 

can differ depending on whether a 

patient is seeking treatment on an 

emergency basis, but Dr. Gagne ́ testified 

that none of the nine patients of 

Respondent whose files Dr. Gagne ́

reviewed sought treatment on an 

emergency basis. (Tr. 41–42.) 

Dr. Gagne ́ defined ‘‘chronic pain’’ as 

a painful condition lasting more than 

three months after the acute illness 

giving rise to the pain has been 

resolved. (Tr. 42, 209.) In determining 

whether a patient is truly suffering from 

chronic pain, a physician must trust the 

patient but also must compare objective 

evidence with a patient’s subjective 

complaints because some patients 

exaggerate symptoms. (Tr. 43.) A 

physician must listen both to what the 

patient says and to what the patient 

does not say, to ‘‘learn[] some of the 

implications and context and things that 

people are not saying but are kind of 

present in the room.’’ (Tr. 207.) In 

treating a pain patient, a physician must 

obtain several aspects of a patient’s 

history, to include the patient’s present 

illness, past medical history, social 

history, psychiatric history, family 

history, review of symptoms and 

addiction history.11 (Tr. 43–44.) In 

obtaining this information,12 Dr. Gagne ́

called the following components 

essential: How the pain began, the 

course of the illness, the course of 

treatment and diagnostic procedures 

and the patient’s current symptoms, 

including neurological symptoms. (Tr. 

45–46.) When prescribing controlled 

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13For instance, a doctor should have a serious 

discussion with a chronic pain patient about the 

possibility of physical therapy, and document the 

conversation in the record. (Tr. 59.) 

14 Dr. Gagne ́ also cautioned that ‘‘there is not one 

single medical or scientific study that shows that 

opiates are safe or effective in the treatment of 

chronic pain.’’ (Tr. 57.) 

15 Dr. Gagne ́ elaborated that in California, where 

marijuana may legally be prescribed for medical 

purposes, a doctor must first establish a medical 

diagnosis and also conduct an addiction history, 

given the drug’s high addiction potential. (Tr. 77– 

78.) 

16This practice can indicate a potential for 

diversion, as follows. (Tr. 94.) With respect to 

OxyContin and Vicodin ES, for example, there is no 

difference therapeutically between the brand name 

and the generic version. (Tr. 94.) Although some 

patients believe the brand name is more effective, 

requesting a brand name ‘‘can be a way of showing 

customers who are buying the drugs secondarily 

that this is the real thing, because generics are 

pretty nondescript tablets, and you don’t know 

what you’re getting.’’ (Tr. 94.) 

17See generally 21 U.S.C. § 812 (establishing five 

schedules of controlled substances); 21 C.F.R. 

§ 1308.11–15 (2010) (listing the controlled 

substances in Schedules I—V). 

18 Dr. Gagne ́’s also testified that OxyContin is a 

brand of oxycodone, an opiate and a controlled 

substance. (Tr. 39, 114, 126.) 

substances, it is critical to obtain a list 

of the patient’s prior medications. (Tr. 

47.) Among other reasons, a patient’s 

history of medication gives a physician 

a ‘‘sense of the appropriateness of the 

patient’s use of the controlled 

substances and whether they’re likely to 

be a problem.’’ (Tr. 48.) 

It is also important to collaborate with 

a patient’s previous physicians to verify 

that a patient has truthfully represented 

the amount of medication she has taken 

in the past. (Tr. 48.) The importance of 

obtaining a patient’s prior medical 

records, and ordering X-rays or MRIs, 

varies with the patient based on the 

complexity of the illness and the 

previous course of treatment. (Tr. 48–49, 

54.) The importance of obtaining such 

documentation increases when 

prescribing controlled substances 

because among therapies, controlled 

substances are unique in that some 

patients ‘‘will engage in substantial 

misdirection, lying, and manipulation to 

obtain them.’’ (See Tr. 51.) 

Conducting a physical examination is 

also critical prior to prescribing 

controlled substances. (Tr. 52.) In 

addition to at least one comprehensive 

‘‘head to toe’’ exam, a physician should 

conduct a ‘‘relatively-detailed 

orthopedic-style examination or 

rheumatologic-style evaluation.’’ (Tr. 

52.) In a patient with lower back pain, 

for instance, such an examination might 

include watching the patient walk and 

observing range of motion, checking for 

tenderness or deformity of the spine, 

checking the neurologic function for 

weakness or lack of sensation and 

checking muscles and joints for spasm 

or tenderness. (Tr. 52.) Prescribing 

controlled substances without an office 

visit by the patient is something 

that mostly you don’t do, but there are 

circumstances in which you have a long-term 

patient who’s stable, where the drug doses 

aren’t changing, and there’s absolutely no 

problem at all, and you know very well that 

they’re doing well, and they’re not going to 

come in and telling you they’re crashing or 

they need more or this or that. 

(Tr. 222.) 

The upshot, Dr. Gagne ́ explained, is 

that before prescribing controlled 

substances, ‘‘there has to be enough 

information in the record to be 

meaningful, it has to add up to 

something. Or if you don’t, you refer 

somebody out for * * * evaluation and 

then you base your treatment on a 

specialist’s evaluation.’’ (Tr. 213.) 

Documenting the various steps 

described above in a patient’s medical 

record is important. Although it is not 

practical to document every word 

spoken or action taken at a patient 

consultation, the medical community 

nevertheless presumes that ‘‘if it’s not in 

the medical records, it’s assumed not to 

have happened.’’ 13 (Tr. 54.) Dr. Gagne ́

elaborated that the burden of proof is on 

the physician: ‘‘[T]he standard is that a 

competent physician can pick up the 

medical record and understand without 

too much trouble what happened.’’ (Tr. 

214.) Physicians who treat a patient 

based on an analysis not documented in 

the patient’s medical chart are 

‘‘subjecting themselves to high risk of 

problems down the road.’’ (Tr. 216.) 

Dr. Gagne ́ also clarified that there is 

a difference between a diagnosis and a 

symptom. Low back pain, for instance, 

is not a diagnosis of an illness but is 

instead a symptom that can be due to at 

least a dozen causes. (Tr. 56.) When 

patients seek controlled substances, it is 

important to perform an independent 

diagnosis regarding any possible 

addiction. (Tr. 56.) 

Dr. Gagne ́ recognizes the validity of 

opiates in the treatment of chronic pain 

and relies on opiates to treat some of his 

patients. (Tr. 57–58.) But even when a 

patient is in pain and the pain is 

confirmed by a doctor, it is not 

necessarily appropriate to prescribe 

opiates in all instances; other treatments 

may be more effective.14 (Tr. 57–58.) 

When prescribing controlled substances, 

the physician should give the lowest 

dose consistent with a beneficial 

clinical outcome and periodically 

review the treatment’s efficacy. (Tr. 59– 

60.) Although there is a legitimate ‘‘role 

for dose finding,’’ it is inappropriate to 

blindly increase a dosage when a given 

dosage isn’t working. (Tr. 60.) Increasing 

a dosage on the sole grounds that a 

patient requests an increase is 

inappropriate without an assessment of 

the patient’s symptoms, function, sleep, 

mood and other factors. (Tr. 61.) 

As signals indicating the potential 

addiction to or diversion of controlled 

substances, Dr. Gagne ́ identified a 

number of ‘‘red flags.’’ When a red flag 

occurs, ‘‘one needs to sort out what’s 

going on before continuing to prescribe 

the medications * * * there are kinds of 

red flags where you simply have to stop, 

you can’t continue to prescribe 

controlled drugs.’’ (Tr. 64–65.) Red flags 

include a patient asking for larger doses; 

a claim that ‘‘my dog ate my 

prescription,’’ that the patient dumped 

the prescription down the toilet, that the 

prescription was stolen or other 

‘‘dramatic stories of how my drugs 

suddenly disappeared and I need 

more’’; a patient requesting an advance 

supply due to anticipated travel when 

the patient later tries to refill the 

prescription before the extra dosage 

should have been consumed; evidence 

that the patient has obtained controlled 

substances from more than one 

physician or is using more than one or 

two pharmacies; increasingly bizarre 

statements about the need for opiates; 

and missing appointments frequently. 

(Tr. 62–64.) Moreover, a patient who 

exaggerates the type of medication she 

has previously taken under the care of 

a prior doctor poses the sort of red flag 

that requires a physician to ‘‘stop 

prescribing controlled substances until 

you sort out what’s going on.’’ (Tr. 63.) 

A patient who uses illicit drugs is a 

‘‘huge red flag’’ and ‘‘it would be very 

inappropriate to prescribe controlled 

prescription medications to such a 

patient absent other extremes.’’ (Tr. 63.) 

A patient’s reluctance to provide 

medical records or claims of frequent 

injuries are also red flags. (Tr. 64.) 

As ‘‘yellow flags’’ that could signal 

addiction or diversion, Dr. Gagne ́

identified instances of patients 

requesting brand-name drugs instead of 

settling for generic alternatives; patients 

who pay by cash; patients who use 

marijuana for medicinal purposes 15 (Tr. 

62–64); and a prescribing physician 

writing ‘‘DAW’’ or ‘‘dispense as 

written’’ on a prescription.16 (Tr. 93.) 

Dr. Gagne ́ also identified various 

controlled substances.17 Oxycodone is a 

powerful opiate with a high abuse 

potential. (Tr. 49.) Oxydose and Oxyfast 

are varieties of oxycodone.18 (Tr. 49, 

113.) Hydrocodone is another powerful 

opiate with a lower strength but high 

abuse potential. (Tr. 49.) Norco is a 

brand name of hydrocodone mixed with 

Tylenol or acetaminophen. (Tr. 49.) 

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19The record reflects some variance on the 

number of files reviewed. The OSC indicated that 

Dr. Gagne ́ reviewed ten of Respondent’s files. (ALJ 

Ex. 1.) Dr. Gagne ́’s written report states that ‘‘eight’’ 

patient files were reviewed, but substantively 

addresses nine patients. (Gov’t Ex. 3 at 1.) 

Testimony at hearing also indicated there was ‘‘yet 

another file that Dr. Gagne ́ reviewed’’ (Tr. 288) but 

that was not included in this particular case, 

reflecting a total of ten files reviewed by Dr. Gagne ́. 

20Mr. Purvis explained that his wife was on 

‘‘very, very serious medications’’ to treat pain 

arising out of a 2005 airplane crash. (Tr. 295, 297.) 

Kadian is a time-release form of 

morphine and Actiq is a brand name of 

fentanyl. (Tr. 49.) Xanax is a highlyaddicting and frequently abused opiate. 

(Tr. 39, 78.) Valium is diazepam, a 

benzodiazepine and sedative with 

moderate addiction potential. (Tr. 50.) 

Dilaudid is ‘‘the most powerful opiate 

that I’m aware of with an incredibly 

high addiction potential.’’ (Tr. 50.) 

Phenergan is a powerful sedative with 

anti-nausea properties, and codeine is 

an opiate with moderate abuse 

potential. (Tr. 50.) 

Based upon a review of nine of 

Respondent’s patient files offered at 

hearing,19 Dr. Gagne ́ opined that ‘‘there 

were some patients where there was 

nothing that really approached what I 

consider anything like medical care, and 

others where it was more like medical 

care.’’ (Tr. 215–16.) As detailed in a 

later Section of this Recommended 

Decision, Dr. Gagne ́ opined that 

Respondent’s prescribing of controlled 

substances to his patients was 

characterized by 

grossly inadequate medical records and 

virtually a complete absence of clinical 

information. No meaningful history, no 

meaningful physical examination, no past 

medical history, no family history, no review 

of systems, et cetera, nothing. No physical 

exam worthy of the name * * *. there were 

structures in the chart that had those titles, 

but the data was absent. Another reason is 

patients who it became clear were grossly 

misusing their medications or getting them 

from multiple sources. At that point there 

can no longer be a legitimate medical 

purpose of continuing controlled drugs. Or 

when a patient is being admitted [or referred] 

to rehabilitation facility for drugs * * * you 

don’t keep just prescribing the same old 

controlled drugs you always were. 

(Tr. 223–24.) 

C. Respondent’s Evidence 

Daniel B. Brubaker, D.O. (Respondent) 

is an osteopathic physician. (E.g., Tr. 

204.) Respondent was previously 

registered with DEA as a practitioner 

and surrendered his registration on 

August 21, 2008. (ALJ Ex. 4.) 

Respondent subsequently applied for a 

new COR following the execution of a 

search warrant at his office. (E.g., Tr. at 

273–74.) The number associated with 

Respondent’s application is 

W09177610C. (Gov’t Ex. 1.) 

Respondent attended Elizabethtown 

College in Pennsylvania and graduated 

from Philadelphia College of 

Osteopathic Medicine in 1974. (Tr. 300.) 

He undertook clinical and pathological 

training and completed a residency at 

the University of Pittsburgh. (Tr. 300.) 

Respondent is board certified in 

anatomic pathology, clinical pathology 

and immunohematology and holds 

certifications for various procedures. 

(Tr. 301.) He possesses seventeen years 

of experience in transfusion and 

transplantation medicine, has served as 

medical director of three different blood 

centers and has completed continuing 

medical education units since beginning 

his medical career. (See Tr. 301–02.) 

Respondent has also taught medical 

students, residents and interns at the 

University of Oklahoma and UCLA and 

has published in twenty-five peerreviewed journals, including articles on 

innovative approaches to making blood 

transfusions safer. (Tr. 301–02, 310.) 

Respondent also testified to his 

medical history. He developed cancer of 

the colon in late November 2000, which 

was resolved by chemotherapy and 

surgery in 2004. (Tr. 307.) Because the 

cancer had metastasized to his liver, 

Respondent underwent surgery to 

remove the right lobe of his liver in 

February 2002. (Tr. 307.) In 2004, 

Respondent underwent surgery for sleep 

apnea. (Tr. 311.) In 2005, Respondent 

underwent an invasive inpatient 

operation to perform three ablations to 

address atrial fibrillation. (Tr. 312.) 

Respondent further testified to marital 

and family issues, and his own related 

mental health issues. In 2004, 

Respondent was divorced. (Tr. 313.) In 

2006, Respondent and his ex-wife 

disputed the custody of their son. (Tr. 

313–14.) At that time, Respondent was 

experiencing depression. (Tr. 314.) As a 

result of the custody dispute, 

Respondent was permitted to see his 

son for three hours. (Tr. 314.) 

Thereafter, Respondent was not 

permitted to see his son. (See Tr. 314.) 

Turning to Respondent’s medical 

practice, Respondent testified that in or 

around 1997, Respondent went into 

private practice as an internist. (Tr. 304– 

05.) For approximately ten years he 

performed workers’ compensation 

assessments. (Tr. 305.) During this time 

Respondent worked under a grant from 

the National Institutes of Health to 

develop an in vitro bleeding time test. 

(Tr. 306.) 

From 2000 to the present, Respondent 

has taken pain management courses 

with the American Academy of Pain 

Management. (Tr. 308.) In 2004 or 2005, 

Respondent purchased a medical 

practice in Fresno, California and began 

treating pain management patients at a 

time when approximately five or six 

area physicians practiced pain 

management. (Tr. 307, 315; 310.) The 

practice slowly evolved to the point 

where most of his patients were pain 

management patients. (Tr. 309.) 

Respondent testified to experiencing 

managerial difficulties and theft during 

the early years of this practice. (Tr. 316– 

20.) 

Paul J. Markowitz (Dr. Markowitz), a 

board-certified psychiatrist, testified on 

behalf of Respondent. (Tr. 258.) Dr. 

Markowitz received a bachelor’s degree 

and subsequently completed the M.D.- 

Ph.D. program at Case Western Reserve 

University in Cleveland, Ohio. (Tr. 256.) 

Following an internship at the 

University Hospitals of Cleveland, Dr. 

Markowitz completed a post-doctoral 

fellowship in 

neuropsychopharmacology at Oxford 

through the National Science 

Foundation. (Tr. 257.) Following two 

years working at the Cleveland Clinic 

and a residency at the University 

Hospitals of Cleveland, Dr. Markowitz 

worked as a professor. (Tr. 257.) In 

approximately 2000 Dr. Markowitz 

moved to California, where he has 

practiced for the past ten years. (Tr. 

257.) His practice consists of a sixtyhour week, with twenty or twenty-five 

hours devoted to seeing patients and the 

balance of his time spent on research 

trials. (Tr. 258.) Respondent became a 

patient of Dr. Markowitz in 2005. (Tr. 

259.) 

David Smiley Purvis (Mr. Purvis), 

who testified on behalf of Respondent, 

is a licensed clinical social worker. (Tr. 

292.) He holds a bachelor’s degree from 

Fresno State University and in 1985 

received a master’s degree in social 

work. (Tr. 292.) Mr. Purvis testified to 

having counseled Respondent on a 

weekly basis on anger and frustration 

management since approximately May 

2008. (Tr. 292, 294.) He explained that 

Respondent’s divorce and lack of 

contact with his son, for whom 

Respondent cares deeply, were a very 

difficult and emotional experience for 

Respondent. (Tr. 293.) Mr. Purvis also 

testified to having visited Respondent’s 

practice location to observe how 

Respondent treated pain management 

patients, based on Mr. Purvis’s own 

professional and personal20 interest in 

how doctors treat pain management. (Tr. 

294–95.) Respondent expressed interest 

in how his own therapy with Mr. Purvis 

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21 21 U.S.C. § 822(a)(2); 21 U.S.C. § 802(10). 

22 21 C.F.R. § 1306.04(a). 

23 21 U.S.C. § 844(a). 

24See Kuen H. Chen, M.D., 58 Fed. Reg. 65,401, 

65,402 (DEA 1993). 

25See 21 C.F.R. § 1301.44(e) (2010). 

26See Medicine Shoppe—Jonesborough, 73 Fed. 

Reg. 364, 380 (DEA 2008); see also Thomas E. 

Johnston, 45 Fed. Reg. 72,311, 72,311 (DEA 1980). 

could help Respondent’s patients. (Tr. 

297.) 

IV. The Parties’ Contentions 

A. The Government 

The Government urges that 

Respondent’s registration would be 

inconsistent with the public interest and 

states as follows. (Tr. 8.) First, 

Respondent repeatedly issued large 

quantities of highly-addictive controlled 

substances to patients without a 

legitimate medical purpose and outside 

the usual course of professional 

practice. (Tr. 8–9.) Some of these 

patients were suspected drug abusers, 

addicts and dealers, and yet Respondent 

continued to supply them with 

narcotics. (Tr. 9.) Second, Respondent 

has misused controlled substances, 

having been arrested while driving 

under the influence of controlled 

substances, and having tested positive 

for several controlled substances, 

including marijuana. (Tr. 8.) 

The Government argues in its post 

hearing brief that ‘‘factors two, four and 

five are relevant in determining whether 

Respondent’s application * * * should 

be denied.’’ (Gov’t Br. at 25.) The 

Government argues in substance that 

Respondent has been responsible for the 

diversion of large quantities of 

controlled substances by prescribing 

‘‘controlled substances to patients 

without a legitimate medical purpose 

and/or outside the course of 

professional practice.’’ (Id.) The 

Government further argues that 

Respondent ‘‘arguably violated Federal 

and state law prohibiting the 

unauthorized use of marijuana and 

prescription drugs.’’ (Id. at 28 (citing 21 

U.S.C. § 844).) The Government argues 

that ‘‘Respondent’s complete failure to 

admit fault or accept responsibility 

weighs heavily in the public interest 

determination.’’ (Id. at 28.) Finally, the 

Government argues that Respondent has 

provided no facts demonstrating 

mitigating circumstances and due to 

Respondent’s lack of credibility, his 

testimony should be given no weight. 

(Id. 29–31.) 

B. Respondent 

Respondent argues that he is a 

competent, capable, able physician who 

is nothing like the image that the 

Government has portrayed. (Tr. 11.) 

Respondent denies having prescribed 

large amounts of controlled substances 

without a legitimate medical purpose. 

(Tr. 12.) Moreover, Respondent 

contends that the Government’s expert 

witness, Dr. Gagne ́, has a different 

approach to pain management than does 

Respondent. (Tr. 12.) 

Respondent also argues that evidence 

of medical and domestic issues affecting 

Respondent during the time period in 

question should inform an 

interpretation of Respondent’s conduct. 

(Tr. 12.) In his post hearing brief, 

Respondent further argues that the 

voluntary surrender of his registration 

on August 21, 2008, is not a ground to 

support denial. (Resp’t Br. at 8.) 

Similarly, Respondent argues that the 

‘‘sole conviction for a ‘wet and reckless’ 

misdemeanor,’’ in light of Respondent’s 

medical and personal history, does not 

support a denial of his application for 

registration. (Id. at 8–9.) 

Respondent argues that Factors One 

and Three are inapplicable. Respondent 

maintains the major issue is his clinical 

treatment of nine patients, and notes 

there ‘‘were specific mistakes which 

Respondent made in treating those 

patients.’’ (Id. at 9.) Respondent argues 

in substance that there is ‘‘little 

conclusive evidence’’ of Respondent 

acting with disregard to the health of his 

patients or public, and that the record 

contains substantial evidence that 

Respondent ‘‘was improving his pain 

and medical practice protocols.’’ (Id.) 

Respondent ‘‘acknowledges that his 

record-keeping can improve’’ but argues 

that he ‘‘had significant difficulties with 

office staff, burglaries and has taken a 

remedial records course.’’ (Id.) 

V. Discussion 

A. The Applicable Statutory and 

Regulatory Provisions 

The CSA provides that any person 

who dispenses (including prescribing) a 

controlled substance must obtain a 

registration issued by the DEA in 

accordance with applicable rules and 

regulations.21 ‘‘A prescription for a 

controlled substance to be effective 

must be issued for a legitimate medical 

purpose by an individual practitioner 

acting in the usual course of his 

professional practice. The responsibility 

for the proper prescribing and 

dispensing of controlled substances is 

upon the prescribing practitioner’’ with 

a corresponding responsibility on the 

pharmacist who fills the prescription.22

It is unlawful for any person to possess 

a controlled substance unless that 

substance was obtained pursuant to a 

valid prescription from a practitioner 

acting in the course of his professional 

practice.23 In addition, I conclude that 

the reference in 21 U.S.C. § 823(f)(5) to 

‘‘other conduct which may threaten the 

public health and safety’’ would as a 

matter of statutory interpretation 

logically encompass the factors listed in 

§ 824(a).24

B. The Public Interest Standard 

Pursuant to 21 U.S.C. § 823(f), the 

Deputy Administrator may deny an 

application for a DEA COR if she 

determines that such registration would 

be inconsistent with the public interest. 

In determining the public interest, the 

Deputy Administrator is required to 

consider the following factors: 

(1) The recommendation of the 

appropriate state licensing board or 

professional disciplinary authority. 

(2) The applicant’s experience in 

dispensing or conducting research with 

respect to controlled substances. 

(3) The applicant’s conviction record 

under federal or state laws relating to 

the manufacture, distribution or 

dispensing of controlled substances. 

(4) Compliance with applicable state, 

federal or local laws relating to 

controlled substances. 

(5) Such other conduct which may 

threaten the public health and safety. 

As a threshold matter, the factors 

specified in Section 823(f) are to be 

considered in the disjunctive: the 

Deputy Administrator may properly rely 

on any one or a combination of those 

factors, and give each factor the weight 

she deems appropriate, in determining 

whether a registration should be 

revoked or an application for 

registration denied. See David H. Gillis, 

M.D., 58 Fed. Reg. 37,507, 37,508 (DEA 

1993); see also D & S Sales, 71 Fed. Reg. 

37,607, 37,610 (DEA 2006); Joy’s Ideas, 

70 Fed. Reg. 33,195, 33,197 (DEA 2005); 

Henry J. Schwarz, Jr., M.D., 54 Fed. Reg. 

16,422, 16,424 (DEA 1989). Application 

of the public interest factors requires an 

individualized determination and 

assessment of prescribing and recordkeeping practices that are ‘‘tethered 

securely to state law . . . and federal 

regulations.’’ Volkman v. DEA, 567 F.3d 

215, 223 (6th Cir. 2009). Additionally, 

in an action to deny a registrant’s COR, 

the DEA has the burden of proving that 

the requirements for revocation are 

satisfied.25 The burden of proof shifts to 

the respondent once the Government 

has made its prima facie case.26

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27No further evidence or testimony was offered 

with regard to the status or outcome of the state 

review. 

28Testimony at hearing revealed that the process 

for selecting nine of Respondent’s patient files 

began with the seizure of approximately seventy 

patient files pursuant to a search warrant, all of 

which were ‘‘individuals that were known to have 

been either drug dealers or drug abusers and their 

associates.’’ (Tr. 287.) A California Medical Board 

Investigator then selected the files to be reviewed 

by Dr. Gagne ́ based on the ‘‘file structure’’ and the 

fact that the ‘‘files appeared to be incomplete.’’ (Tr. 

287.) 

29As discussed below, however, not every 

prescription for controlled substance that 

Respondent issued is associated with an office visit. 

30 § 2241 authorizes a practitioner to ‘‘prescribe, 

dispense, or administer’’ controlled substances to 

an addict ‘‘for a purpose other than maintenance 

on, or detoxification from’’ controlled substances. 

Moreover, ‘‘a person whose drug-seeking behavior 

is primarily due to the inadequate control of pain 

is not an addict. * * *’’ Cal. Health & Safety Code 

§ 11156(b)(2). 

31 ‘‘Dangerous drugs’’ are broadly defined to 

include any ‘‘drug * * * that by federal or state law 

can be lawfully dispensed only on prescription. 

* * *’’ Cal. Bus. & Prof. Code § 4022. 

32To protect patient privacy, patient initials are 

used in this Recommended Decision. 

C. The Factors To Be Considered 

Factors 1 and 3: The Recommendation 

of the Appropriate State Licensing 

Board or Professional Disciplinary 

Authority and Conviction Record Under 

Federal or State Laws Relating to the 

Manufacture, Distribution or Dispensing 

of Controlled Substances 

In this case, regarding Factor One, it 

is undisputed that Respondent currently 

holds a valid unrestricted osteopathic 

medical license in California, but 

Respondent’s license has been the 

subject of a ‘‘review [by] the California 

Medical Board with regard to the 

appropriateness of [Respondent’s] care’’ 

(Tr. 71), the results of which are 

unknown.27 While not dispositive, 

Respondent’s possession of a valid 

unrestricted osteopathic medical license 

in California does weigh in favor of a 

finding that Respondent’s registration 

would not be inconsistent with the 

public interest. See Robert A. Leslie, 

M.D., 68 Fed. Reg. 15,227, 15,230 (DEA 

2003) (state license is a necessary, but 

not a sufficient condition for 

registration, and therefore, this factor is 

not dispositive). 

Regarding Factor Three, there is no 

evidence that Respondent has ever been 

convicted under any federal or state law 

relating to the manufacture, distribution 

or dispensing of controlled substances. 

I therefore find that this factor, although 

not dispositive, see Leslie, 68 Fed. Reg. 

at 15,230, weighs against a finding that 

Respondent’s registration would be 

inconsistent with the public interest. 

Factors 2 and 4: Respondent’s 

Experience in Handling Controlled 

Substances; and Compliance With 

Applicable State, Federal or Local Laws 

Relating to Controlled Substances 

In this case, there is indeed evidence 

that Respondent has failed to remain in 

compliance with applicable federal and 

state law relating to controlled 

substances, and that his past experience 

in dispensing controlled substances 

with regard to nine patients was 

inconsistent with the public interest. 

The evidence at hearing centered in 

substantial part on nine patient files 

previously seized from Respondent’s 

office on August 21, 2008.28 (ALJ Ex. 1; 

Tr. 336–38.) In addition to the patient 

files, the Government presented the 

testimony and written report of a 

medical expert witness, Dr. Gagne ́, with 

regard to his review of the nine patient 

files along with his opinion as to 

whether Respondent issued 

prescriptions in each instance for a 

legitimate medical purpose and in the 

usual course of professional practice. 

The patient files related to office visits 

with Respondent occurring at various 

dates between 2006 and 2008.29

Respondent testified as to his standard 

of care and treatment for each of the 

nine patients, along with his past 

experience, among other testimony. 

Evaluation of Respondent’s 

prescribing conduct in this case is 

governed by applicable federal and state 

law. The applicable standard under 

federal law is whether a prescription for 

a controlled substance is ‘‘issued for a 

legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 C.F.R. § 1306.04(a). The 

standard of care refers to that generally 

recognized and accepted in the medical 

community rather than a standard 

unique to the practitioner. Robert L. 

Dougherty, M.D., 76 Fed. Reg. 16,823, 

16,832 (DEA 2011) (citing Brown v. 

Colm, 11 Cal.3d 639, 642–43 (1974)). 

Although it is recognized that state law 

is a relevant factor in determining 

whether a practitioner is acting in the 

‘‘usual course of professional practice,’’ 

it is also appropriate in the context of 

an inquiry under federal law to also 

consider ‘‘generally recognized and 

accepted medical practices’’ in the 

United States. Bienvenido Tan, M.D., 76 

Fed. Reg. 17,673, 17,681 (DEA 2011). 

The applicable standards under 

California law may be found in various 

provisions of the California Business 

and Professional Code as well as the 

California Health and Safety Code. 

Mirroring federal law in substantial 

part, California law provides that: 

[a] prescription for a controlled substance 

shall only be issued for a legitimate medical 

purpose by an individual practitioner acting 

in the usual course of his or her professional 

practice. The responsibility for the proper 

prescribing and dispensing of controlled 

substances is upon the prescribing 

practitioner, but a corresponding 

responsibility rests with the pharmacist who 

fills the prescription. 

Cal. Health & Safety Code § 11153(a). 

Except as authorized by Cal. Bus. & Prof. 

Code § 2241,30 ‘‘no person shall 

prescribe for, or administer, or dispense 

a controlled substance to, an addict, or 

to any person representing himself or 

herself as such. * * *’’ Cal. Health & 

Safety code § 11156(a). 

Additionally, state law ‘‘governing 

licentiates of the Osteopathic Medical 

Board of California is found in the 

Osteopathic Act and in Chapter 5 of 

Division 2, relating to medicine.’’ Cal. 

Bus. & Prof. Code § 3600. Relevant 

provisions of Chapter 5 include: 

‘‘Prescribing, dispensing, or furnishing 

dangerous drugs31 * * * without an 

appropriate prior examination and a 

medical indication, constitutes 

unprofessional conduct.’’ Id. § 2242(a). 

‘‘A physician * * * may prescribe 

* * * prescription drugs * * * to an 

addict for purposes of maintenance [or] 

detoxification. * * *’’ only as set forth 

pursuant to specified provisions of law 

limiting continuing treatment to 

programs licensed by California. Id. 

§ 2441(b); Cal. Health & Safety Code 

§ 11217. This requirement does not 

apply ‘‘during emergency treatment, or 

where the patient’s addiction is 

complicated by the presence of 

incurable disease, serious accident, or 

injury, or the infirmities of old age.’’ 

Cal. Health & Safety Code § 11217(h). 

Turning to the evidence in the instant 

case, the testimony and written report of 

the Government’s medical expert, Dr. 

Gagne ́, centered on a file review for 

patients [D.A.], [L.G.], [R.G.H.], [A.L.], 

[L.M.], [K.P.], [D.S.], [A.W.] and 

[T.W.].32 With regard to patient [D.A.], 

Dr. Gagne ́ noted in his report that the 

medical file consisting of five pages 

arguably ‘‘establishes the minimal 

documentation necessary to treat a 

medical problem,’’ but also noted the 

‘‘record omits the detail necessary to 

form a medical diagnosis, and there is 

no basis for the diagnosis stated.’’ (Gov’t 

Ex. 3 at 2.) Dr. Gagne ́ further noted that 

the ‘‘standard of practice for patient 

records is to document all important 

aspects of the patient encounter, 

including: History, current medications, 

physical examination, tests, assessment, 

and plan.’’ (Id.) Based on a review of 

[D.A.]’s medical record, Dr. Gagne ́ found 

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33While not relevant to Respondent’s prescribing 

practices, Dr. Gagne ́ characterized Respondent’s 

failure to evaluate, treat or refer patient [L.G.] to a 

psychiatrist regarding [L.G.]’s depression as a 

simple departure. (Gov’t Ex. 3 at 9.) 

34Although the transcript reflects that Dr. Gagne ́

referred to Government Exhibit 8, that file does not 

relate to patient [L.G.] and the pages referenced are 

inconsistent with a toxicology report. (See Gov’t Ex. 

8 at 4–5 (patient file for [D.A.]).) Under the 

circumstances it seems more likely that Dr. Gagne ́

intended to identify Government Exhibit 9. See 

Gov’t Br. at 6 n.4 (acknowledging that Government 

failed to correct misstatement at hearing). 

the ‘‘record contains many of these 

elements in skeletal form,’’ and further 

noted as a ‘‘glaring omission’’ with 

regard to Respondent’s authorization of 

medicinal cannabis ‘‘the absence of a 

psychiatric or addiction history or any 

notation as to the patient’s response to 

cannabis to date.’’ (Id. at 3.) Dr. Gagne ́

also noted the prescription for a large 

quantity of OxyContin to be ‘‘an extreme 

deviation from the standard of practice, 

as is the absence of an adequate 

evaluation to support such a 

prescription on a medical basis.’’ (Gov’t 

Ex. 3 at 2–3; Gov’t Ex. 8 at 5.) 

Consistent with his written report, Dr. 

Gagne ́ testified at hearing that in his 

opinion Respondent prescribed 

controlled substances to patient [D.A.] 

without a legitimate medical purpose 

and outside of the usual course of 

professional practice because there was 

an inadequate medical evaluation. (Tr. 

79–80.) Dr. Gagne ́ explained that it is 

outside of the usual course of 

professional practice to prescribe 

OxyContin without an appointment and 

without a treatment plan or some basis 

for issuing the prescription, which were 

lacking here. (Tr. 74–75.) Respondent’s 

prescription for 180 OxyContin 40 mg 

was dated January 7, 2007, but the 

patient file contains no record of an 

office visit on that day, which occurred 

approximately four weeks after the 

previous appointment. (Tr. 74; Gov’t Ex. 

3 at 2.) Dr. Gagne ́ indicated that ‘‘[t]here 

may be a medical purpose for 

prescribing OxyContin (chronic pain), 

but the record is completely inadequate 

as to why this is needed rather than a 

less dangerous alternative.’’ (Gov’t Ex. 3 

at 2.) Dr. Gagne ́ further opined that there 

is no documented basis, such as an MRI 

or CT scan report, to support 

Respondent’s diagnosis of annular tears 

in lumbar disks; without a basis for 

diagnosis there can be no basis for 

treatment. (Tr. 72–73.) 

On cross-examination, Dr. Gagne ́

elaborated on the level of detail required 

for a medical history and physical 

examination, noting that ‘‘best practice 

is different from the standard practice, 

and it’s different from the minimal 

standard one must meet in order to 

prescribe any treatment appropriately.’’ 

(Tr. 212.) 

Respondent testified in substance that 

he initially saw patient [D.A.] on the 

evening of December 6, 2006, for a 

cannabis recommendation, and on 

January 3, 2007, for a pain management 

visit. (Tr. 345, 351.) Respondent 

indicated his practice was to see four or 

five cannabis recommendation patients 

two evenings per week, and if the 

patient requested to establish treatment 

with Respondent on an ongoing basis, 

the patient would be required to make 

another appointment during the day. 

(Tr. 345.) Respondent explained that he 

was able to determine that patient [D.A.] 

had ‘‘annular tears’’ by experience 

rather than with imaging such as an 

MRI. (Tr. 346–47.) In sharp contrast, Dr. 

Gagne ́ testified that an ‘‘annular tear is 

a finding that one would obtain on 

imaging, probably an MRI or a CT scan, 

and no imaging was present in this file.’’ 

(Tr. 73.) Respondent further explained 

his ability to diagnose ‘‘annular tears’’ 

from a variety of physical examination 

tests he performed, stating that the 

reason none of the tests were 

documented in the file was due to 

‘‘bouts of epicondylitis in my right 

elbow’’ that limited his writing ability, 

among other reasons. (Tr. 348.) 

Somewhat inconsistently, Respondent 

also testified that he has ‘‘had five of my 

charts reviewed by the University of 

California Davis, and they had no 

problems with what I was doing.’’ (Tr. 

349.) Respondent agreed with Dr. Gagne ́

insofar as the prescription dated January 

3, 2007, did not have a corresponding 

chart entry associated with it. (Tr. 352.) 

Respondent testified that he prepared a 

chart ‘‘every single time,’’ but testified 

to the possibility the file was 

incomplete because of a staff error. (Id.) 

With regard to patient [D.A.], I do not 

find Respondent’s testimony fully 

credible, particularly given Dr. Gagne ́’s 

credible testimony that diagnosis of an 

annular tear would require imaging. 

Respondent’s attempt to justify his 

findings based on ‘‘experience’’ and 

‘‘testing’’ finds no objective support in 

the medical file or other record 

evidence. To the contrary, other patient 

files in this record contradict 

Respondent’s assertion that he prepares 

a patient chart ‘‘every single time.’’ I 

accept Dr. Gagne ́’s findings and 

opinions regarding Respondent’s 

deviations from the standard of care for 

[D.A.], as described above, which are 

well supported and consistent with the 

evidence of record. 

In the case of patient [L.G.], Dr. Gagne ́

noted in his report a medical file 

consisting of approximately 126 pages, 

commenting that ‘‘this is an average sort 

of workup for a primary care physician 

treating a pain problem,’’ but noted a 

number of blank pain management 

forms and concluded that the ‘‘physical 

examination is completely inadequate.’’ 

(Gov’t Ex. 3 at 4.) Dr. Gagne ́ noted that 

‘‘immediately starting the patient on a 

high-dose OxyContin is extremely 

inappropriate without more 

information.’’ (Id.) Dr. Gagne ́ concluded 

that the medical records for patient 

[L.G.] are a ‘‘substantial departure from 

the standard of practice,’’ further 

characterizing the departure as a 

difficult choice between ‘‘simple and 

extreme departures’’ but ultimately 

characterizing it as a simple departure.33

Finally, Dr. Gagne ́ opined that 

Respondent’s ‘‘[p]rescribing controlled 

drugs (including opiates) to an addict 

[and] [p]rescribing sedating drugs to 

someone having recurrent falls and 

automobile accidents and altered mental 

status, presumably due to the drugs 

being prescribed’’ was an extreme 

departure from the standard of care. 

(Gov’t Ex. 3 at 9.) 

Dr. Gagne ́ testified consistent with his 

report, stating that in his opinion 

prescribing controlled substances to 

patient [L.G.] ‘‘was inappropriate, it was 

without a medical basis, it was 

somebody having recurring problems as 

a result of the substances, falls and 

automobile accidents, and there was no 

medical basis.’’ (Tr. 108.) Dr. Gagne ́

further testified that ‘‘[i]t was clear from 

the medical record’’ that [L.G.] was a 

drug addict. (Tr. 82.) [L.G.]’s urine 

toxicology screen showed drugs of 

abuse. (Tr. 83.) In particular, the patient 

file indicates that [L.G.] tested positive 

for methamphetamine, opiates, 

oxycodone and amphetamines even 

though a review of the patient file 

reveals the patient was not being 

prescribed amphetamine or 

methamphetamine. (Tr. 98; See Gov’t 

Ex. 9 at 4–5.) 34 Despite the evidence of 

drug addiction or drug abuse, 

Respondent did not take an addiction 

history for [L.G.] (Tr. 82.) And on 

February 20, 2008, the same day [L.G.] 

tested positive for methamphetamine 

and amphetamines, for which the 

patient lacked a prescription, 

Respondent issued a prescription for 

OxyContin, Roxicodone and an antiinflammatory drug at the same levels 

the patient had previously been 

receiving. (Tr. 98–99.) Dr. Gagne ́

testified that Respondent therefore acted 

inappropriately, because the patient’s 

positive test results for 

methamphetamine and amphetamines 

should have been ‘‘the type of red flag 

that is a full stop, meaning that one 

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must stop providing controlled drugs 

and reevaluate the situation.’’ (Tr. 99.) 

Respondent testified that the pages of 

the medical chart for [L.G.] were not in 

the usual order but recalls first treating 

[L.G.] in December 2006. (Tr. 357.) 

Respondent acknowledged that he 

began a practice of urine drug testing 

toward the end of [L.G.]’s treatment, and 

that was when he first discovered 

improper drug use based on a positive 

test for methamphetamine, opiates, 

oxycodone and amphetamines. (Tr. 368; 

Gov’t Ex. 9 at 4.) Respondent stated his 

intent was to refer [L.G.] to counseling 

and treat the patient’s pain (Tr. 370) but 

that stopping the opioids immediately 

would have caused withdrawal. (Tr. 

371.) A February 20, 2008 follow-up 

consult report states: ‘‘Patient took 

methamphetamine in her coffee a few 

days ago. She hasn’t injected. She does 

it once to twice a week.’’ (Gov’t Ex. 9 at 

32.) Notwithstanding this information, 

Respondent continued to prescribe 

controlled substances to [L.G.] until 

August 14, 2008. (Tr. 371.) Respondent 

further explained that between 2005 and 

2008 he was on ‘‘a learning curve’’ and 

by 2008 ‘‘I was getting much better at it. 

* * *’’ (Tr. 373.) Respondent also 

testified that he did not treat [L.G.]’s 

depression with antidepressants, stating 

that ‘‘I’m not sure why I didn’t do that 

at the time.’’ (Tr. 374.) 

I find Respondent’s testimony with 

regard to patient [L.G.] not entirely 

credible insofar as he maintains his 

practice was getting much better by 

2008. There is simply no credible 

evidence of record reflecting substantial 

improvement in Respondent’s 

prescribing practices and compliance 

with applicable law. Additionally, 

Respondent’s explanations that he 

intended to both refer [L.G.] to 

counseling and treat her pain is not 

credible. There is no evidence that a 

referral was made or any meaningful 

follow-up in that regard by Respondent. 

The testimony of Dr. Gagne ́, supported 

by [L.G.]’s patient file, reflects a 

prescribing pattern that is a substantial 

departure from the standard of care 

under federal and state law. Dr. Gagne ́’s 

opinion that Respondent’s conduct with 

regard to ‘‘[p]rescribing controlled drugs 

(including opiates) to an addict [and] 

[p]rescribing sedating drugs to someone 

having recurrent fall * * *, ’’ among 

other issues, constituted an extreme 

departure from the standard of care, is 

fully supported by the objective 

evidence of record. 

The medical chart pertaining to 

patient [R.G.H.] consisted of 

approximately seventy-seven pages. Dr. 

Gagne ́ commented that the 

documentation on the first visit of 

February 22, 2007, ‘‘fills in all the 

blanks’’ but ‘‘is skeletal and grossly 

inadequate.’’ (Gov’t Ex. 3 at 9.) Dr. 

Gagne ́ documented his review of a 

series of ongoing office visits by patient 

[R.G.H.] with Respondent from March 

2007 to August 2008, concluding that 

Respondent had engaged in a number of 

extreme departures from the standard of 

care, to include inadequate medical 

records, prescribing controlled drugs 

(opiates) to an addict and using opiates 

with an inadequate evaluation or 

consideration of therapeutic 

alternatives. (Id. at 12.) 

Dr. Gagne ́ testified that [R.G.H.]’s 

patient file reflected a number of 

prescriptions for controlled substances 

for which there was no corresponding 

appointment with Respondent. (Tr. 

112–117.) Dr. Gagne ́ was of the opinion 

that Respondent’s issuance of 

prescriptions without a corresponding 

appointment ‘‘was highly inappropriate 

and without a medical purpose.’’ (Tr. 

118.) Additionally, the patient file for 

[R.G.H.] included an undated notation 

indicating positive for ‘‘Ecstasy’’, 

‘‘Amph’’, Methamph’’, ‘‘Benzo’’ and 

‘‘Methadone.’’ (Gov’t Ex. 10 at 1.) There 

is no other record evidence in the 

patient file further explaining the note, 

other than a July 9, 2008 follow-up 

treatment report noting: ‘‘Diversion: 

States [R.G.H.] is not diverting?’’ (Id. at 

14) and a July 22, 2008 report noting: 

‘‘Diversion: Possibly.’’ (Id. at 13.) Dr. 

Gagne ́ also testified in substance that 

[R.G.H.] clearly became addicted to 

powerful controlled substances and 

Respondent continued to prescribe 

controlled substances for [R.G.H.] after 

the addiction became apparent. (Tr. 

110.) Dr. Gagne ́ testified to a number of 

‘‘red flags’’ in the patient file suggestive 

of diversion or addiction. (See Tr. 110.) 

Respondent testified that he initially 

saw [R.G.H.] on an unscheduled visit 

while [R.G.H.] was with [R.G.H.]’s 

mother, for a non-pain management 

matter, and Respondent referred 

[R.G.H.] to a specialist for treatment. (Tr. 

376–77.) Respondent testified he next 

saw [R.G.H.] for a pain management 

appointment on February 22, 2007, 

when he diagnosed [R.G.H.] with 

‘‘lumbar disc problems from a motor 

vehicle accident.’’ (Tr. 378.) Respondent 

testified to prescribing various 

controlled substances to [R.G.H.] at the 

initial appointment, as well as followup appointments, but was uncertain at 

various points in his testimony as to 

actions taken because of a lack of 

information in the chart. For example, 

when asked why he did not continue to 

prescribe Soma on a follow-up visit, 

Respondent indicated ‘‘I’m not sure,’’ 

further testifying that he would not 

ordinarily put information in a patient’s 

chart if medication was reduced, and 

‘‘sometimes’’ put a note in the chart for 

an increase. (Tr. 380.) When asked why 

he added Actiq during an April 24, 2007 

follow-up appointment, Respondent 

testified that it was ‘‘probably for 

breakthrough pain,’’ and further 

explained that the only time he would 

prescribe Actiq was for ‘‘breakthrough 

pain or migraine headaches.’’ (Tr. 381– 

82.) 

Respondent’s testimony with regard 

to prescribing Actiq is inconsistent with 

his follow-up chart for the April 24, 

2007 appointment. (Gov’t Ex. 10 at 26– 

27.) There is no reference to ‘‘migraine 

headaches’’ other than a note in the 

history section indicating [R.G.H.] went 

to the emergency room after ‘‘feeling 

really tired, sick, headache, etc.’’ (Id. at 

26.) Similarly, there is no reference in 

the chart to the addition of Actiq, nor 

any reference to problems with 

breakthrough pain. To the contrary, the 

pain scale is circled in the ‘‘moderate’’ 

pain category. (Id.) In fact the ‘‘Interval 

History’’ form bearing a signature 

consistent with [R.G.H.]’s name for the 

date of the appointment describes how 

[R.G.H.] has been doing since the last 

appointment which [R.G.H.] marks as 

‘‘same.’’ (Id. at 27.) Respondent’s 

explanation for prescribing Actiq to 

[R.G.H.] is simply not credible. 

Respondent next testified to believing 

that [R.G.H.] was ‘‘using * * * and 

diverting’’ controlled substances, stating 

‘‘I was prescribing OxyContin to her, 

and she was obviously not taking it 

since it wasn’t in her urine.’’ (Tr. 384.) 

Respondent initially testified he did not 

know when [R.G.H.] was tested because 

a lot of things ‘‘are missing from this 

chart possibly because they were 

friends,’’ further explaining that [R.G.H.] 

was friends with members of 

Respondent’s staff. Respondent’s 

testimony suggested that his medical 

assistant had taken documents out of 

the chart, but in the same sentence 

Respondent said he ‘‘was not sure’’ and 

had ‘‘no way of knowing it.’’ (Tr. 385.) 

Moreover, somewhat inconsistent with 

his initial statement that he did not 

know when [R.G.H.] was tested, 

Respondent next testified based on his 

chart notes of July 22, 2008, that he was 

aware of the urine test results on that 

date and refilled [R.G.H.]’s medications, 

elaborating that ‘‘I only refilled it one 

time’’ which would be within the thirtyday discharge period for a patient. (Tr. 

386) 

I find Respondent’s testimony that he 

only refilled [R.G.H.]’s prescription for 

controlled substances one time on July 

22, 2008, and subsequently discharged 

[R.G.H.], palpably not credible. The 

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35 I give no weight to Dr. Gagne ́’s reference in his 

written report to Respondent’s credibility. (Gov’t 

Ex. 3 at 14.) 

36September 20, October 20, November 16 and 

December 14, 2006. (Gov’t Ex. 11 at 32, 28 & 25.) 

unequivocal evidence of record reflects 

that rather than discharge [R.G.H.], 

Respondent continued to treat and refill 

[R.G.H.]’s prescriptions for controlled 

substances on August 6 and August 20, 

2008, even though he knew [R.G.H.] was 

‘‘using and diverting.’’ (Gov’t Ex. 10 at 

12, 34.) Dr. Gagne ́ found the August 6 

and August 20, 2008 prescriptions 

concerning and opined that they were 

issued outside the scope of usual 

professional practice in light of the 

patient’s acknowledged addiction. (Tr. 

123.) He observed: 

Having someone self-identify as an addict 

and be referred to addiction treatment 

produces an absolute contraindication to 

provision of any controlled drug whatsoever 

unless one is working with the diversion— 

or the addiction treatment program and does 

so under their direction. So you would need 

to have close coordination of care. And 

there’s no evidence that any discussion was 

had with anybody else about her addiction. 

(Tr. 122.) Dr. Gagne ́ opined that 

Respondent’s controlled substances 

prescriptions were without medical 

foundation or basis and constituted 

prescribing to an addict. (Tr. 123.) I 

accept the findings and opinions of Dr. 

Gagne ́ as noted above, which are well 

supported and consistent with other 

credible evidence of record. 

Turning next to the medical chart of 

patient [A.L.], Dr. Gagne ́ noted in his 

report that it consisted of approximately 

fifty-four pages covering the time period 

from June to December 2006. (Gov’t Ex. 

3 at 12.) Dr. Gagne ́ noted that the initial 

visit resulted in a prescription dated 

June 22, 2006, for ‘‘180 OxyContin 

80mg, 120 Actiq 1600 mcg, and 60 10- 

mg Valium’’ along with another 

prescription with the same date for 

‘‘another 120 Actiq 1600 mcg and sixty 

Valium.’’ (Id.) Dr. Gagne ́ further 

commented that ‘‘[t]his is an enormous 

amount of medication and constitutes 

overprescribing on its face.’’ (Id. at 13.) 

A comparative review of the two June 

22, 2006 prescriptions from the patient 

file reveals that one bears in capital 

letters the word ‘‘VOID,’’ as well as a 

line through it, indicating that only one 

prescription was actually issued. (Gov’t 

Ex. 11 at 23–24.) Accordingly, I give no 

weight to Dr. Gagne ́’s specific finding of 

overprescribing on its face. 

In his report, Dr. Gagne ́ also 

commented that the ‘‘initial two visits 

are an extreme example of form without 

content,’’ noting ‘‘no good-faith attempt 

to obtain an adequate history, evaluate 

for possible addiction, detail precise 

symptoms, determine neurologic status, 

or perform an adequate physical 

evaluation.’’ (Id.) After reviewing chart 

information for patient [A.L.] 

surrounding a September 20, 2006 

follow-up visit, Dr. Gagne ́ commented 

that this ‘‘has now become bizarre,’’ 

noting in part that the file contained a 

Controlled Substance Utilization 

Review & Evaluation System (CURES) 

report dated September 5, 2006, 

showing another doctor was prescribing 

to [A.L.] 90 OxyContin 80 mg once a 

month from March 22 to July 21, 2006. 

Dr. Gagne ́ referenced a final office visit 

dated December 14, 2006, in which the 

patient chart for [A.L.] contains a 

notation from Respondent regarding the 

patient’s abuse of drugs and 

medications, stating 

I am upset and really let him know it. He 

kept making excuses. And I stopped the 

excuses. I will fill his meds, have him come 

back in a month. He has to come back with 

a drug treatment facility—phone number, 

etc., then I may discharge. I will make that 

decision next time. 

(Id. at 14; see Gov’t Ex. 11 at 25.) 35

Consistent with his written report, 

Dr. Gagne ́’s testimony emphasized that 

Respondent’s prescribing of controlled 

substances to [A.L.] was not in the 

context of a good-faith physician-patient 

relationship, there was no medical 

purpose served and the prescriptions 

were not issued in the usual course of 

professional practice. (Tr. 137.) In 

support of this conclusion, Dr. Gagne ́

explained that [A.L.] tested positive for 

metabolites of methadone, Soma, 

marijuana and benzodiazepines, based 

on a specimen given November 16, 

2006, and a report printed November 21, 

2006. (Gov’t Ex. 11 at 48–53; Tr. 130– 

33.) The patient file contains a printed 

toxicology report containing a 

handwritten notation indicating that 

‘‘Benzo prescribed—last time was 

August,’’ which Dr. Gagne ́ interpreted as 

referring to three months before [A.L.] 

underwent the drug test. (Gov’t Ex. 11 

at 53; see Tr. 130–31.) Dr. Gagne ́ further 

testified that although this handwritten 

comment did not raise any concerns 

because it can be appropriate for 

patients to take medication 

intermittently, three other handwritten 

comments are concerning. (Tr. 131.) The 

toxicology report reflects a handwritten 

notation next to ‘‘methadone’’ stating 

‘‘Not Prescribed by me—stated a Family 

Member Gave to Him;’’ next to 

Carisoprodol, a note appears stating 

‘‘not Prescribed;’’ next to Cannabinoids, 

a note states ‘‘not Prescribed or Made 

Legal.’’ (Gov’t Ex. 11 at 53; see Tr. 131.) 

Dr. Gagne ́ further testified that these 

notes ‘‘confirm[ ] that we have a 

problem here’’ with respect to 

Respondent’s prescribing practices. (Tr. 

131.) Respondent received [A.L.]’s 

toxicology report at least as early as 

December 14, 2006 (Gov’t Ex. 11 at 48; 

Tr. 132), confronted the patient about 

[A.L.]’s abusive drug habits (Gov’t Ex. 

11 at 25; Tr. 133), but nevertheless 

prescribed to [A.L.] 240 OxyContin 80 

mg and 90 Roxicodone 30 mg on that 

day (Gov’t Ex. 11 at 46; Tr. 132). Dr. 

Gagne ́ testified that Respondent issued 

the December 14, 2006 prescriptions 

outside the usual course of professional 

practice in light of ‘‘evidence that the 

patient is not only abusing drugs but has 

additional sources of opiates.’’ (Tr. 134.) 

Respondent testified with varying 

levels of certainty and specificity with 

regard to his prescribing practices for 

patient [A.L.] (Tr. 387–395.) For 

example, when asked why there was a 

discrepancy in the chart as to an initial 

visit date of June 22, 2006, but a 

medication agreement was dated June 

26, Respondent replied ‘‘I don’t know.’’ 

(Tr. 394.) In terms of specifics of what 

he might do differently in the future, 

Respondent testified ‘‘I think I’d be 

better educated in abuse * * * ’’ (Tr. 

395.) As to the issue of diversion, 

Respondent testified that ‘‘I noticed that 

he was either using or diverting. And 

we got a CURES Report that showed that 

* * * [A.L.] was discharged within six 

or so visits as well, but there’s no 

discharge letter in this chart. And I 

know for a fact he was discharged. I 

know he was discharged.’’ (Tr. 393.) But 

the evidence contradicts Respondent’s 

testimony. The evidence reflects that 

after the September 5, 2006 CURES 

report which Respondent acknowledges 

as confirmation of ‘‘using or diverting,’’ 

Respondent continued to prescribe 

controlled substances on four additional 

occasions.36 Additionally, contrary to 

Respondent’s testimony that [A.L.] was 

discharged, a phone message note in 

[A.L.]’s chart dated January 17, 2007, 

states: ‘‘[A.L.] need his oxy. All the 

paperwork you asked for. Per Dr. B 

1/17/07 just bring in paperwork will 

speak to rehab place 1st before meds are 

given.’’ (Gov’t Ex. 11 at 22.) This note 

directly contradicts Respondent’s 

assertion that [A.L.] had been 

discharged. 

For the foregoing reasons, I find 

Respondent’s testimony with regard to 

patient [A.L.] not credible. Dr. Gagne ́’s 

conclusions and opinion of extreme 

deviations in Respondent’s compliance 

with the standard of care as to patient 

[A.L.] pertaining to the absence of a 

good-faith medical evaluation prior to 

prescribing controlled drugs, 

prescribing controlled drugs to someone 

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37The CURES Report is dated September 22, 2006 

and reflects various prescriptions for [L.M.] 

between March 30, 2006 and August 10, 2006, 

listing four other prescribers in addition to 

Respondent. 

38A urine drug screen report for [L.M.] is dated 

November 22, 2006. (Gov’t Ex. 11 at 54.) 

39The January 11, 2007 consult chart reflects 

‘‘current medications Dose/Freq’’ as ‘‘OxyContin 80 

x 180;’’ ‘‘Roxicodone 30 x 540.’’ (Gov’t Ex. 13 at 15.) 

This quantity reflected [K.P.]’s self-reported current 

medications which Respondent recorded. (Tr. 460.) 

Dr. Gagne ́ noted in his report that this would reflect 

a daily dose of 1020 mg of oxycodone, which would 

be a ‘‘staggering dose’’ if accurate. (Gov’t Ex. 3 at 

17.) 

Respondent knew or should have 

known was an addict and prescribing 

controlled drugs without a legitimate 

medical purpose, are fully consistent 

with the objective evidence of record. I 

also accept Dr. Gagne ́’s opinion as to a 

‘‘simple deviation for the standard of 

practice’’ as it pertains to [A.L.]’s 

medical records. (Gov’t Ex. 3 at 14.) 

With regard to patient [L.M.], the 

patient chart consisted of sixty-three 

pages covering the period from July 

2006 to April 2007. Dr. Gagne ́ testified 

that based on his review of the chart, 

‘‘medications were not given in a goodfaith manner or for a legitimate medical 

purpose.’’ (Tr. 139.) Dr. Gagne ́ noted in 

his report that the initial July 12, 2006 

consultation note indicated: ‘‘diagnosis 

is ‘chronic pain from fractured ankle,’ 

and the treatment two OxyContin 80 mg 

every 12 hours and two Norco 10/325 

three times a day.’’ (Gov’t Ex. 3 at 15.) 

Dr. Gagne ́ commented that the chart did 

not ‘‘qualify as a good-faith medical 

evaluation’’ and there was no basis for 

prescribing large quantities of opiates.’’ 

(Id.) Of note, Dr. Gagne ́ stated 

‘‘[c]ertainly the dose of opiates provided 

would be fatal in an opiate-naı ̈ve 

patient.’’ (Id.) In summary, Dr. Gagne ́

found the overall chart contained 

‘‘elements of the history and physical 

exam’’ but there was ‘‘no meaningful 

content,’’ and therefore ‘‘the records 

themselves reflect a simple deviation 

from the standard of practice.’’ (Id. at 

17.) Additionally, Dr. Gagne ́ found 

extreme deviations from the standard of 

practice given the absence of a goodfaith medical evaluation prior to 

prescribing controlled drugs, 

prescribing controlled drugs without 

legitimate medical purpose and 

overprescribing much larger doses of 

opiates than was indicated clinically. 

(Id.) 

Respondent testified that he could not 

explain the absence from the chart of 

items such as past medical history, 

review of alcohol or drug abuse, and 

work history. (Tr. 395–96.) Respondent 

stated he would ordinarily gather that 

information. Respondent explained that 

he was deceived by patients, but doing 

better now, ‘‘although I’m not seeing 

any pain management patients * * * .’’ 

(Tr. 397.) Respondent further testified 

that if given a DEA registration, he 

would never again prescribe OxyContin 

but was unsure if he would engage in 

pain management. (Tr. 398.) Respondent 

testified that he believes he first 

discovered [L.M.] was engaging in 

duplicitous conduct ‘‘when we got the 

CURES Report.’’ (Tr. 398.) Respondent 

next stated the ‘‘patient was discharged 

as well’’ but ‘‘believed [L.M.] was 

discharged soon after * * * .’’ the urine 

test and CURES report. (Tr. 399.) In 

contrast, Respondent testified on crossexamination that he did not know when 

he received the CURES report, claiming 

he did not see the report or ‘‘it wasn’t 

in the chart until later.’’ (Tr. 460.) 

The patient file for [L.M.] contains a 

CURES report dated September 22, 

2006, bearing a handwritten notation 

consistent with the word ‘‘file.’’ (Gov’t 

Ex. 12 at 56.) 37 A review of [L.M.]’s 

chart reveals no other reference to 

receipt of the CURES report.38 Contrary 

to Respondent’s testimony, [L.M.] was 

not discharged. Rather, Respondent 

continued to prescribe controlled 

substances on successive follow-up 

visits dated: October 20, 2006; 

November 17, 2006; December 15, 2006; 

January 11, 2007; January 30, 2007; and 

February 28, 2007. (Gov’t Ex. 12 at 23– 

33.) In fact, the chart contains a 

‘‘communication log’’ dated April 24 to 

27, 2007, confirming conversations 

consistent with notations by a staff 

member in Respondent’s office, 

indicating [L.M.] was ‘‘asking for refill 

of Oxyfast was told had to ask Dr., come 

back tomorrow.’’ (Id. at 15.) A 

subsequent entry reflects [L.M.] ‘‘came 

back in late p.m. advised per doctor 

needs to have drug screen 1st before 

new RX,’’ to which [L.M.] questioned 

the need, stated [L.M.] was unable to 

provide a urine sample and indicated an 

intention to return the next day. (Gov’t 

Ex. 12 at 15.) The entry the next day 

indicated [L.M.] ‘‘never returned.’’ 

(Gov’t Ex. 12 at 15.) [L.M.]’s return to 

Respondent’s office in April of 2007 for 

a ‘‘refill’’ is inconsistent with 

Respondent’s assertion that [L.M.] had 

been discharged, at any time. Clearly, 

[L.M.] did not believe [L.M.] had been 

discharged and the chart notations 

suggest that Respondent had not 

discharged [L.M.], which if true would 

have precluded the necessity of a urine 

screen. 

Accordingly, I find Respondent’s 

testimony with regard to [L.M.] not 

credible based in part on various factual 

inconsistencies, as well has his 

numerous non-responsive and evasive 

answers to questions posed on both 

direct and cross-examination. (See Tr. 

396–99; 457–60.) I accept Dr. Gagne ́’s 

findings and opinions regarding 

Respondent’s deviations from the 

standard of care for [L.M.], as described 

above, which are well supported and 

consistent with the evidence of record. 

The evidence and testimony 

pertaining to patient [K.P.] included a 

patient chart consisting of forty-one 

pages covering the time period January 

to July 2007. The patient chart includes 

prescriptions for various controlled 

substances dated: January 11, 2007; 

February 8, 2007; February 15, 2007; 

February 16, 2007; March 6, 2007 (‘‘to 

pick up on March 14’’); March 6, 2007; 

March 30, 2007; April 20, 2007; April 

30, 2007; May 16, 2007; June 8, 2007; 

June 18, 2007; July 3, 2007; July 12, 

2007; and July 12, 2007. (Gov’t Ex. 13 

at 24–38.) The patient chart reflects an 

initial consultation report dated January 

11, 2007, with follow-up reports dated: 

February 8, 2007; March 6, 2007; March 

30, 2007; May 16, 2007; June 8, 2007; 

June 19, 2007; and July 5, 2007. (Id. at 

5–15.) 

Dr. Gagne ́ commented in his written 

report that based on chart 

documentation relating to the initial 

January 11, 2007 consultation, 

the information in this visit constitutes an 

inadequate basis for treating any disease or 

condition and does not in my view reflect a 

good-faith medical evaluation. There is no 

real diagnosis and no basis for a diagnosis of 

‘‘annular tears.’’ 39 The amount of medication 

prescribed is egregious: 750 mg/day of 

oxycodone. Finally, there is no information 

in the chart from any other physician, 

including the doctor who presumably 

referred the patient. 

(Gov’t Ex. 3 at 18.) The chart 

information for the February 8, 2007 

follow-up visit reflects an increase in 

medication at the request of [K.P.], 

noting ‘‘pt would like to ↑ oxy to #240’’ 

(Gov’t Ex. 13 at 13.) A corresponding 

prescription ‘‘dated 2/8/07 is for 240 

OxyContin 80 mg (taken as four every 

12 hours) and 240 Roxicodone 30 mg, 

for a total of 1,200 mg daily.’’ (Id.) The 

evidence also reflects two additional 

prescriptions issued to [K.P.] on 

February 15 and 16, 2007, with no 

associated clinic note present in the 

chart. (Id. at 35–36.) Dr. Gagne ́ noted the 

prescription dated ‘‘2/15/07 is for 150 

Actiq 1600 mcg * * * and ten 100-mcg/ 

hour fentanyl patches [and] yet another 

prescription on 2/16/07 is for another 

sixty OxyContin.’’ (Gov’t Ex. 3 at 18.) 

Dr. Gagne ́ commented in his report that 

there ‘‘is no legitimate medical purpose 

for this medication. Anyone who 

actually took this much would be at risk 

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40 21 C.F.R. § 1306.04(a). 

41Page numbers referenced herein refer to page 

numbers on bottom center of Government Exhibit 

13, consistent with the presentation of evidence at 

hearing. Respondent acknowledged his signature on 

pages twenty-four to thirty, thirty-three, thirty-six 

and thirty-eight. (Tr. 465–67.) No testimony was 

offered with regard to the March 30, 2007 

prescription. (Gov’t Ex.13, at 32.) 

42 Dr. Gagne ́ also speculates that the ‘‘only reason 

I can fathom for someone requesting all this 

medication is so [K.P.] can sell it,’’ which notably 

Continued 

for extreme opiate side effects, 

including seizure and death.’’ (Id.) 

Consistent with his report, Dr. Gagne ́

testified that the indication in [K.P.]’s 

patient file that the patient was 

receiving 540 Roxicodone 30 mg from 

another doctor constitutes a ‘‘huge red 

flag full stop * * * when you see 

something like that, you can’t prescribe 

controlled drugs until you sort out 

what’s going on.’’ (Tr. 162.) Dr. Gagne ́

also noted that the patient file contains 

the notation ‘‘Patient of Dr. [W.]’s,’’ with 

no corresponding evidence that 

Respondent consulted with or obtained 

records from 

Dr. [W.] (Tr. 162–63.) The patient file 

also indicates that [K.P.] rated [K.P.]’s 

level of aerobic exercise as moderate, 

which raises a red flag because ‘‘[i]t’s 

inconsistent with somebody who has 

extreme pain requiring stupendous 

doses of opiates.’’ (Tr. 163.) The patient 

file further reflects a notation by 

Respondent ‘‘Need to do drug screen,’’ 

but the record contains no evidence that 

a drug screen was performed and further 

reflects that Respondent later prescribed 

Roxicodone, fentanyl, Dilaudid and two 

prescriptions for OxyContin in July of 

2007. (Tr. 163, 164.) To Dr. Gagne ́, this 

‘‘reinforces the impression that there’s 

no legitimate medical purpose 

underway here.’’ (Tr. 163–64.) Dr. Gagne ́

further testified that Respondent’s 

prescribing behavior with respect to 

[K.P.] was ‘‘completely inconsistent’’ 

with someone who is concerned that a 

person is diverting drugs. (Tr. 163.) Dr. 

Gagne ́ opined that in prescribing to 

[K.P.] Respondent overlooked the high 

probability of diversion, lacked a goodfaith medical evaluation and issued 

prescriptions outside the usual course of 

professional practice. (Tr. 165.) 

Respondent testified in substance that 

[K.P.] came to him from Dr. [W.] who 

Respondent described as ‘‘doing pain 

management in town, who I got a lot of 

patients from and who I discovered 

were abusing their medications. In fact, 

there’s at least a handful of patients I 

reduced their medications 

significantly.’’ (Tr. 401.) Respondent 

further testified regarding the current 

level of medication [K.P.] self-reported, 

stating this ‘‘is what Dr. [W.] had a lot 

of patients on. And it is absurd.’’ (Tr. 

461.) Respondent could not explain the 

absence of records from Dr. [W.] in the 

patient chart, stating that ‘‘most all my 

charts have records from Dr. [W.]’’ (Tr. 

401.) Respondent suggested that the 

absence of records were not due to a 

lack of request on his part, but due to 

staff problems in his office at the time. 

‘‘It was—it was a problem in the office 

that I had so much turnover between 

2003 and 2007. You know how costly it 

is and how difficult it is to keep training 

new help. * * *’’ (Tr. 403–04.) 

Respondent’s knowledge that ‘‘a lot’’ of 

patients from Dr. [W.] were abusing 

their medications, and that Dr. [W.] was 

prescribing absurd amounts of 

medications, at a minimum should have 

caused Respondent to have a heightened 

level of scrutiny in the case of [K.P.] 

Instead, the patient chart is effectively 

devoid of any evidence that Respondent 

took any reasonable action to meet his 

‘‘responsibility for the proper 

prescribing * * * of controlled 

substances.’’ 40

Respondent also testified with regard 

to dosage levels, stating that he first 

prescribes the medication and then over 

a three or four month period evaluates 

the patient’s medical problems and 

determines if an increase or decrease is 

warranted. (Tr. 402.) That testimony is 

inconsistent with Respondent’s 

treatment of [K.P.], because the objective 

chart information indicates Respondent 

increased [K.P.]’s medication less than 

thirty days from the initial consult visit, 

notably at the patient’s request, rather 

than for a stated medical reason. In fact, 

on the ‘‘Interval History’’ form bearing 

[K.P.]’s signature for the February 8, 

2007 appointment, which asks the 

patient to assess how the patient has 

been doing since the last visit with 

regard to back pain, [K.P.] notes ‘‘same.’’ 

(Gov’t Ex. 13 at 14.) 

Respondent also testified that he had 

gone through ‘‘these records about a half 

dozen times’’ and noticed ‘‘yesterday’’ 

that several signatures relating to 

prescriptions for [K.P.] were not his, 

apparently suggesting that people other 

than Respondent wrote the 

prescriptions. (Tr. 404–05.) Referring to 

page numbers of prescriptions 

contained in Government Exhibit 13, 

Respondent elaborated further on direct 

examination: ‘‘The prescription on 38 is 

not my signature’’; ‘‘Page 34 is not my 

signature’’; ‘‘The one on page 31 is not 

my signature. I’m not sure about 29 

* * * I can’t really tell.’’ (Tr. 405–06.) 

On cross-examination, Respondent 

presented conflicting testimony. 

Respondent acknowledged his signature 

with regard to most prescriptions,41 but 

testified initially that ‘‘34 looks like it’s 

mine’’ but later testified ‘‘Looks like it’s 

not mine.’’ (Tr. 465, 466.) Directly 

contradicting his earlier testimony with 

regard to page twenty-nine, Respondent 

testified ‘‘That appears to be mine.’’ (Tr. 

465.) Similarly, Respondent directly 

contradicted his earlier testimony with 

regard to page 38, testifying ‘‘It’s mine.’’ 

(Tr. 467.) Respondent’s testimony with 

regard to the questionable signatures for 

three other prescriptions was vague: 

‘‘This one I can’t tell * * * I do not 

know’’ (Tr. 466 (Page 31).); ‘‘I’m not 

sure’’ (Id. (Page 35).); ‘‘I can’t tell on 

that.’’ (Tr. 467 (Page 37).) 

I do not find credible Respondent’s 

testimony suggesting that several 

signatures on prescriptions issued to 

[K.P.] may be forged. There is no 

objective evidence of record to support 

the suggestion that someone else forged 

Respondent’s signature, and 

Respondent’s conflicting testimony on 

something as fundamental as 

recognition of his own signature, 

particularly with regard to the 

prescriptions reproduced in 

Government Exhibit 13 at pages twentynine, thirty-four and thirty-eight, is 

plainly incredible. I also do not find 

credible Respondent’s testimony 

suggesting his staff may have been at 

fault for the lack of follow-up or 

documentation in the patient chart. 

There is simply no evidence to support 

the assertion and Respondent’s 

demonstrated lack of credibility in 

numerous specific portions of his 

testimony casts significant doubt on his 

entire testimony. 

I accept Dr. Gagne ́’s conclusions and 

opinion of extreme deviations in the 

standard of care for patient [K.P.] 

pertaining to Respondent’s: Grossly 

inadequate medical records, including 

no visit at all for several prescriptions; 

prescribing of controlled drugs without 

a legitimate medical purpose; lack of a 

good-faith medical evaluation prior to 

prescribing controlled drugs; and 

overlooking of the high probability of 

diversion. (Gov’t Ex. 3 at 19.) As to the 

last point, Respondent not only 

overlooked but in fact knowingly 

accepted a high probability of diversion 

by admittedly accepting what he agreed 

was an ‘‘absurd’’ level of dosing for 

[K.P.] (Tr. 461.) 

I do not, however, accept Dr. Gagne ́’s 

conclusion and opinion with regard to 

Respondent’s ‘‘prescribing controlled 

drugs to an addict or to someone he 

should have known was an addict.’’ 

There is no reference in [K.P.]’s patient 

chart to drug use or addiction. Any 

opinion or conclusion in that regard by 

Dr. Gagne ́ is mere speculation.42

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conflicts with his opinion as to addiction. (Gov’t Ex. 

3 at 18.) I give no weight to these comments as to 

[K.P.]’s specific intent. Intent aside, the evidence is 

fully consistent with a high probability of diversion. 43The date could arguably read October 29, 2007, 

coinciding with chart information of an office visit 

for ‘‘cannabis night.’’ (Gov’t Ex. 14 at 24.) Further 

confusing the issue, Respondent’s counsel asked 

Respondent to describe this patient ‘‘when she 

presented in your office apparently October 27th, 

’07,’’ to which Respondent replied in context 

stating that he first saw [D.S.] on December 15, 

2007. (Tr. 408.) In any event, there is no supporting 

chart information for prescribing controlled 

substances on October 29, 2007. (See Gov’t Ex. 14 

at 31.) 

44Notes related to the prescription reflect that 

Respondent prescribed a three-month supply 

because the patient stated ‘‘she was going to Texas 

to see family & would not be back for 3 mo.’’ (Gov’t 

Ex. 14 at 30.) Dr. Gagne ́ commented in his report 

that ‘‘[g]iving someone who is depressed and 

possibly suicidal enough controlled and sedating 

medication to kill themselves and then planning 

not to see them for three months is extraordinarily 

poor care to say the least.’’ (Gov’t Ex. 3 at 20.) 

The evidence as to patient [D.S.] 

included a patient chart numbering 

thirty-one pages covering the time 

period from October 2007 to January 

2008. The chart includes a 

‘‘Consultation’’ note dated October 29, 

2007, stating ‘‘Pt was seen during 

cannibus nite [sic],’’ with no other 

entries for history of present illness, 

current medications, physical exam or 

diagnosis, among other fields. (Gov’t Ex. 

14 at 31.) The patient chart also contains 

a copy of a prescription dated October 

24, 2007 43 for ‘‘180 Norco 10/325 with 

two refills, 180 soma with two refills, 

and a pint of Phenergan with Codeine’’ 

although there is no corresponding 

entry in the chart documenting a 

clinical visit consistent with the 

prescribed medication. (Gov’t Ex. 3 at 

20.) A follow-up report dated December 

15, 2007, under ‘‘History of Present 

Illness’’ stated ‘‘med refill’’ and 

included a diagnosis of ‘‘Lumbar disc 

degeneration, chronic pain, 

depression.’’ (Id.; Gov’t Ex. 14 at 30.) A 

copy of a prescription 44 dated 

December 15, 2007 is for 180 OxyContin 

80 mg, 180 Norco 10/325, 180 soma, a 

pint of Phenergan with codeine, and 60 

Zoloft 100 mg. (Gov’t Ex. 3 at 20; see 

Gov’t Ex. 14 at 2 & 25.) 

The testimony and report by Dr. 

Gagne ́ include findings and opinions as 

to extreme deviations from the standard 

of practice: Grossly inadequate medical 

records, including no visit at all when 

Respondent wrote one prescription; 

prescribing large quantities of 

dangerous, potentially lethal sedating 

medications to a depressed patient for 

whom no assessment was made for 

suicidal ideation or intent; absence of 

good-faith medical evaluation prior to 

prescribing controlled drugs; 

prescribing controlled drugs without a 

legitimate medical purpose; prescribing 

controlled drugs to an addict or to 

someone Respondent should have 

known was an addict; and overlooking 

a high probability of diversion. (Gov’t 

Ex. 3 at 21.) Dr. Gagne ́ testified in 

substance that Respondent prescribed 

‘‘large quantities of controlled drugs 

with multiple refills with no legitimate 

medical purpose.’’ (Tr. 148, 154.) He 

also testified that Respondent’s 

diagnosis of lumbar disc disease and 

chronic pain lacks a medical basis. (Tr. 

148–49.) 

Respondent testified in substance to 

first seeing [D.S.] on December 15, 2007, 

and said the patient ‘‘was in for pain 

medications and cough and colds.’’ (Tr. 

408.) Respondent testified that he noted 

on [D.S.]’s chart ‘‘that she doesn’t have 

her pain managed’’ but did not 

‘‘understand why’’ he stated that. (Id.) 

Respondent then explained that he was 

‘‘really putting the history of present 

illness down’’ noting that [D.S.] had 

injured [D.S.]’s back while lifting. (Id.) 

Respondent further explained that he 

diagnosed lumbar disc degeneration, 

chronic pain and depression, and ‘‘I 

ordered an X-ray be done on her.’’ (Id.) 

Inconsistent with Respondent’s 

testimony, the corresponding chart does 

not reflect a contemporaneous order of 

an X-ray but rather includes a January 

15, 2008 order for a ‘‘Lumbar spine Xray Multiview.’’ (Gov’t Ex. 14 at 26.) 

By way of explanation for prescribing 

a three-month supply, Respondent 

testified: ‘‘And then I gave her a threemonth supply where she stated she was 

going to Texas to visit family. And I 

trusted that was the truth, and so I wrote 

it out for three months or enough for 

three months.’’ (Tr. 409.) Respondent 

testified in substance that, other than 

[D.S.], he has not had a patient on an 

initial visit ask for a three-month 

supply, and even for longstanding 

patients it is ‘‘not usually something 

that I normally do.’’ (Tr. 411–12.) 

Respondent explained that in retrospect 

he would have questioned [D.S.] 

differently and ‘‘I wouldn’t prescribe 

it.’’ (Tr. 412.) Respondent further 

acknowledged that with regard to his 

initial evaluation of [D.S.] ‘‘there is 

room for improvement’’ but never 

suspected at the time of [D.S.]’s first 

visit that [D.S.] was an addict or was 

diverting the medication. (Id.) 

The evidence of record is consistent 

with Respondent’s testimony that he 

normally does not prescribe a threemonth supply. Respondent also testified 

that in January 2008 when [D.S.] came 

in on an unscheduled walk-in visit, 

[D.S.] was discharged. (Tr. 410.) A 

follow-up patient chart report is 

consistent with Respondent’s testimony, 

reflecting in part a notation: ‘‘No longer 

Seeing Patient. I think this patient has 

scammed me’’ and another notation: 

‘‘Patient threatened me to have my 

license revoked.’’ (Gov’t Ex. 14 at 29.) 

Although I find Respondent’s 

testimony partially credible as noted 

above, there is no testimony or other 

evidence of record addressing in any 

way the October 24, 2007 prescription 

signed by Respondent, nor does any 

credible testimony or evidence rebut the 

findings of the only expert witness in 

the case, Dr. Gagne ́, concerning his 

findings and opinions of extreme 

deviations from the standard of practice 

for patient [D.S.] Accordingly, I accept 

the findings and opinions of Dr. Gagne ́

pertaining to extreme deviations from 

the standard of practice as noted above, 

with the exception of Dr. Gagne ́’s 

opinion that Respondent prescribed 

‘‘controlled drugs to an addict or to 

someone he should have known was an 

addict.’’ (Gov’t Ex. 3 at 21.) There is 

insufficient evidence of record to 

support such a finding as to patient 

[D.S.] 

The patient record for [A.W.] 

included a patient chart numbering 205 

pages covering the time period from 

November 2005 to August 2008. Dr. 

Gagne ́’s initial findings and opinion 

regarding the prescribing practices for 

[A.W.] differed in some respects from 

his testimony at hearing. Dr. Gagne ́

stated in his written report that he is ‘‘of 

two minds about this case,’’ noting at 

one point that Respondent ‘‘treats the 

patient’s symptoms without establishing 

a medical diagnosis,’’ but also stating 

shortly thereafter ‘‘I did feel the 

diagnoses at the initial visit of plantar 

fasciitis and possible facet arthropathy 

had some basis.’’ (Gov’t Ex. 3 at 24.) Dr. 

Gagne ́ further stated in his report: ‘‘I do 

not see overprescribing or sense the 

patient is abusing or diverting the 

medications.’’ (Id.) Dr. Gagne ́’s report 

also included a notation consistent with 

the foregoing, to include a review of 

records pertaining to [A.W.]’s January 

2007 hospital admission, where Dr. 

Gagne ́ noted: ‘‘Chemistries are 

unremarkable, as is the urinalysis.’’ (Id. 

at 22 (interpreting Gov’t Ex. 15 at 189– 

205).) 

On direct examination, Dr. Gagne ́

testified in substance that although ‘‘I 

had not spotted this in my initial 

review,’’ there was a urine drug screen 

dated January 2007 that was positive for 

cocaine. (Tr. 181–82.) Dr. Gagne ́ further 

testified in substance that this report 

was in the patient chart but Respondent 

‘‘had not ordered it * * * [so] we have 

no idea [if] it was something that he saw 

[but] I think there’s plenty of evidence 

of doctor shopping and other aberrant 

medication behaviors.’’ (Tr. 182.) Dr. 

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45Moreover, Dr. Gagne ́ testified that Respondent 

did not order the drug screen that there is no 

indication whether Respondent saw the drug screen 

report. (Tr. 182.) But because the drug screen report 

was in Respondent’s patient file for [A.W.], I find 

that Respondent was on inquiry notice of the 

contents of the report, even if he did not possess 

actual knowledge of it. There is no indication that 

the drug screen report was added to the patient file 

after the file left Respondent’s custody and control 

following the execution of a warrant at 

Respondent’s registered location (e.g., Tr. 324), and 

counsel for Respondent did not object to the 

report’s admission at hearing. (Tr. 183.) 

Gagne ́’s reference to ‘‘plenty of 

evidence’’ was a reference to other 

aspects of his testimony on direct 

examination that highlighted chart 

information inconsistent with 

prescribing for a legitimate medical 

purpose. For example, Dr. Gagne ́ was of 

the opinion that Respondent issued 

various prescriptions for controlled 

substances for other than a legitimate 

medical purpose or outside the usual 

course of professional practice. (Tr. 

170–78.) The patient record for [A.W.] 

reflects additional warning signs. Dr. 

Gagne ́ testified that [A.W.]’s medical 

record in multiple instances contains 

evidence of phone calls from other 

clinics to the extent that [A.W.] ‘‘has 

been getting pain medications referred 

by multiple physicians and three 

different pharmacies.’’ (Tr. 179.) Upon 

specific questioning about an April 2006 

chart note and a July 2008 letter, Dr. 

Gagne ́ testified that ‘‘this is clear-cut 

evidence of * * * doctor shopping.’’ 

(Tr. 179; see Gov’t Ex. 15 at 7 & 72.) 

Moreover, Dr. Gagne ́ stated that a note 

by Respondent that ‘‘History of Present 

Illness: She gives me very little 

information to obtain those records’’ 

would ‘‘absolutely’’ give a practitioner 

cause for concern before prescribing 

opiates. (Tr. 180.) Additionally, [A.W.]’s 

patient file indicates that the patient 

requested—and Respondent denied— 

early refills. (Tr. 180.) Another yellow 

flag is an indication that the patient 

requested a brand name medication. (Tr. 

180–81.) And significantly, a drug 

screen report also showed that [A.W.] 

tested positive for cocaine, and there is 

no evidence that Respondent discharged 

the patient for using illegal 

substances.45 (Tr. 181–82.) 

Respondent testified in substance 

with regard to [A.W.] that [A.W.] ‘‘came 

to me from the other practice in central 

Fresno’’ where Respondent believed a 

full history and physical had been 

conducted. (Tr. 414.) Respondent 

testified that he did not ‘‘recall if I had 

[A.W.] on OxyContin from the other 

office or whether I just started treating 

[A.W.] then with OxyContin.’’ (Id.) 

Respondent also testified that staff 

should have obtained prior records but 

did not, and acknowledged in retrospect 

that he should have done another 

history and physical examination. (Id.) 

Respondent testified that he never 

believed [A.W.] was drug seeking when 

he began treatment and never 

determined that [A.W.] was diverting. 

(Tr. 416; 421.) Respondent further 

testified that he does not consider 

therapeutic alternatives with every 

patient but does have a mission 

statement to ‘‘use as many different 

modalities as possible to help the 

patient with pain.’’ (Tr. 422.) 

Respondent’s testimony with regard 

to his knowledge of possible diversion 

by [A.W.] is not consistent with the 

objective evidence of record, as early as 

April 2006. Dr. Gagne ́ testified that the 

January 2007 lab report finding [A.W.] 

positive for cocaine, and related chart 

information, does not indicate whether 

Respondent was aware of such a 

finding, particularly because it was not 

ordered by Respondent. Standing alone, 

the possibility of overlooking such a 

finding is not unreasonable, and in fact 

Dr. Gagne ́ overlooked it in his initial file 

review. The same cannot be said for the 

April 2006 chart notation and the July 

19, 2008 letter addressed to Respondent. 

The chart contains a prescription log 

bearing an entry dated April 10, 2006: 

Margie from central Valley Clinic called to 

inform us that patient is getting Valium, 

Lortab & Soma from their office. Also she 

says that patient uses Valium, Lortab & Soma 

from their office. Also she says that patient 

uses various pharmacies using different 

insurances to refill [A.W.]’s meds. 

(Gov’t Ex. 15 at 7.) A second entry dated 

April 19, 2006, states: 

Patient given a RX for [O]xy[C]ontin since 

we had to reschedule appt. [A.W.] was 

advise[d] to keep [A.W.]’s appt. This is the 

last Rx because [A.W.] will be discharged per 

Dr. Brubaker. 

(Id. (emphasis added).) 

Clearly Respondent was aware of 

diversion issues related to [A.W.] no 

later than April 19, 2006, because he 

had instructed his staff that [A.W.] was 

to be discharged. Notably, patient chart 

notes on and after April 10, 2006, make 

no reference to the known issue of 

diversion, or to discharge. To the 

contrary, a follow-up report dated July 

11, 2006, notes in part ‘‘No evidence of 

abuse * * * .’’ (Id. at 139.) A letter 

addressed to Respondent from the 

pharmacy benefit manager Wellpoint 

Next Rx dated July 19, 2008, is further 

to the point, stating in relevant part: 

‘‘Our pharmacy claim records indicate 

that your patient listed above has had 

pain medications prescribed by you and 

at least 2 other physicians and have 

filled prescriptions in at least 3 different 

pharmacies in a 3-month period.’’ (Id. at 

72.) This evidence unequivocally 

contradicts Respondent’s testimony 

suggesting he had no knowledge of 

diversion by [A.W.] Rather, the July 19, 

2008 letter confirms [A.W.]’s ongoing 

diversion of controlled substances 

consistent with information known to 

Respondent in April 2006. As with 

other material portions of Respondent’s 

testimony, I find Respondent’s relatively 

brief testimony on this issue not 

credible. 

Dr. Gagne ́ concluded in his written 

report for patient [A.W.] that 

Respondent’s medical records are ‘‘a 

substantial departure from the standard 

of practice,’’ further characterizing it as 

a simple rather than extreme departure. 

(Gov’t Ex. 3 at 25.) Dr. Gagne ́ also 

concluded that ‘‘the final simple 

departure from the standard of practice 

is using opiates without consideration 

of therapeutic alternatives.’’ (Id.) I 

accept the findings and opinions of Dr. 

Gagne ́ with the exception of his opinion 

that there is no evidence of 

‘‘overprescribing’’ or evidence that ‘‘the 

patient is abusing or diverting the 

medications,’’ as reflected in his written 

report. That finding is inconsistent with 

the objective chart information, as early 

as April 2006, and Dr. Gagne ́ credibly 

testified that he had overlooked the 

information for purposes of his written 

report. 

The evidence as to patient [T.W.] 

included a patient chart numbering 

forty-six pages covering the time period 

from September 2006 to January 2007. 

Dr. Gagne ́ noted that the initial visit 

resulted in a diagnosis of chronic hip, 

back and leg pain from stress fracture 

and that Respondent’s ‘‘recommended 

treatment is ‘herbal meds.’ ’’ (Id. (citing 

Gov’t Ex. 16 at 42).) The chart contains 

a corresponding prescription dated 

September 20, 2006, ‘‘for 180 OxyContin 

20 mg, three every 12 hours, 120 Norco 

10/325, 1–2 every 4 hours as needed, 

and 90 Xanax 2 mg, one 3 times a day.’’ 

(Gov’t Ex. 16 at 39.) Dr. Gagne ́

commented in his report that ‘‘[t]here is 

no basis in this record for any but the 

most minimal treatment; there is 

certainly no legitimate medical purpose 

to prescribe such enormous quantities of 

opiates, which would be fatal in an 

opiate-naı ̈ve person.’’ (Gov’t Ex. 3 at 25; 

see Gov’t Ex. 16 at 39.) The patient chart 

contains a November 1, 2006 

prescription for ‘‘120 Dilaudid 8 mg, 

120 Norco 10/325, and 90 Xanax 2 mg,’’ 

with no evidence of a corresponding 

clinic visit. (See Gov’t Ex. 3 at 25.) 

Dr. Gagne ́’s report outlines additional 

visits by [T.W.] with corresponding 

controlled substances prescriptions, 

noting finally that a 

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46 In support of this opinion, Dr. Gagne ́ notes in 

his report [T.W.]’s self-reported ‘‘huge marijuana 

habit’’ which is ‘‘telegraphing that he’s an addict.’’ 

(Gov’t Ex. 3 at 26.) 

47Respondent qualified his testimony, stating that 

he currently determines who is prescribing 

medications for a new patient, but was not doing 

so at the time of [T.W.]’s initial visit. (Tr. 424.) 48Reference to the November 21, 2006 chart note 

is irrelevant to the November 1, 2006 prescriptions, 

which precede the November 21, 2006 visit. In any 

event, there is another prescription for controlled 

substances associated with the November 21, 2006 

visit. (See Gov’t Ex. 16 at 36.) 49There is evidence of Respondent’s lack of 

truthfulness with regard patient [T.W.] after January 

31, 2007. Apparently following a telephone 

conversation with staff members of the facility 

detaining [T.W.], Respondent wrote a letter to 

‘‘Physician’s at the Prison & His attorney’’ stating 

in relevant part, ‘‘I saw [T.W.] a few visits in my 

office where I prescribed [T.W.] [X]anax * * * for 

anxiety * * * wellbutrin * * * for ADHD * * * 

Norco 10/325 * * * .’’ (Gov’t Ex. 16 at 16; see Tr. 

432.) On cross-examination Respondent stated he 

was confused and did not ‘‘understand what was 

transpiring between the prison doctor and myself at 

this time.’’ (Tr. 433.) Respondent admitted he wrote 

the letter and the statement as to prescribed 

medications was ‘‘not a true statement.’’ (Id.) 

50For example, Respondent testified at one point 

that ‘‘a lot of things, I think are missing from this 

chart possibly because they were friends. And the 

MA took it out and excluded it. I’m not sure. I have 

no way of knowing it.’’ (Tr. 385.) Respondent also 

testified to a March 2007 theft of a computer 

containing prescription information. (Tr. 316–19.) 

51See, e.g., Tr. 73 (finding annular tears absent 

medical imaging); Tr. 394 (unexplained discrepancy 

in patient file as to initial visit date and medication 

agreement); Tr. 424 (recording ‘‘current 

medications’’ on patient representations alone, 

absent corroboration from other prescriber); Gov’t 

Ex. 15 at 7, 139 (notations in chart of ‘‘no evidence 

of abuse * * *’’ when Respondent in fact did have 

such evidence). 

‘‘Consultation’’ note dated 1/31/07 is 

clearly not a patient visit: ‘‘Discovered in the 

Fresno Bee [newspaper] that this patient has 

been selling drugs of abuse and [T.W.]’s pain 

meds and cannabis. This type of behavior 

ruins treatment for other patients. I hope 

[T.W.]’s put away for 10+ years. [T.W.] sure 

had me fooled. This patient has note in the 

computer now to never be seen again, ever.’’ 

(Id. at 26 (citing Gov’t Ex. 16 at 8).) Dr. 

Gagne ́’s findings and opinion with 

regard to Respondent’s standard of 

practice for [T.W.] included extreme 

departures in the following areas: 

grossly inadequate medical records, 

including no visit at all when 

Respondent wrote one prescription; 

absence of a good faith medical 

evaluation prior to prescribing 

controlled drugs; prescribing controlled 

drugs without a legitimate medical 

purpose; prescribing controlled drugs to 

an addict; 46 and overlooking a high 

probability of diversion. (Id. at 27; see 

Tr. 189.) Elaborating on his report, Dr. 

Gagne ́ testified that [T.W.]’s patient file 

reflects that Respondent prescribed 

Dilaudid to [T.W.] on November 1, 

2006, without an associated patient 

consultation, and without mention in 

the medical notes that Respondent 

wrote such a prescription. (Tr. 184–85.) 

Nor is there any mention of Dilaudid in 

contemporaneous patient notes. (Tr. 

185.) Dr. Gagne ́ opined that there is no 

record that would justify the 

prescription. (Tr. 185.) The record 

further reflects a significant increase in 

an OxyContin prescription from 20 mg, 

180 count on September 20, 2006, to 80 

mg, 300 count on November 21, 2006. 

(Tr. 186.) The record associated with 

[T.W.]’s November 21, 2006 doctor’s 

appointment does not justify increasing 

the patient’s OxyContin by that amount. 

(Tr. 186.) Dr. Gagne ́ testified that the 

entire situation ‘‘has a trolling-for-drugs 

quality.’’ (Tr. 186.) Dr. Gagne ́ further 

found it unusual that on the day 

Respondent increased the dose to 300 

pills a month, Respondent wrote ‘‘Stable 

on 5 OC two 12 H,’’ because the patient 

was not yet taking that many pills. (Tr. 

187.) Patient [T.W.]’s medical file also 

contains references to MRI and X-ray 

reports that are not contained in the 

patient’s medical file. (Tr. 187.) 

Respondent testified he initially saw 

[T.W.] on September 20, 2006, for a 

‘‘cannabis recommendation.’’ (Tr. 424; 

Gov’t Ex. 16 at 41.) Respondent further 

testified that he did not learn who was 

prescribing [T.W.]’s current 

medications, stating ‘‘I don’t really do 

that for cannabis recommendations.’’ 47

Respondent testified in substance that 

he normally handled cannabis 

recommendations at night, but after 

review of [T.W.]’s chart information 

testified that [T.W.] must have come in 

during the afternoon for a cannabis 

recommendation and pain management 

visit. (Tr. 426 & 435–36.) Respondent 

testified that during the initial consult 

with [T.W.] he prescribed the same 

medications [T.W.] had stated [T.W.] 

was already prescribed. (Tr. 427.) 

Respondent provided no credible 

explanation for the November 1, 2006 

prescription that is not associated with 

a corresponding clinical visit, other than 

to refer to the November 21, 2006 

note.48 (Tr. 428.) Respondent testified 

consistent with the November 21, 2006 

chart note that his plan was to have 

[T.W.] obtain an X-ray, adding: ‘‘[T.W.] 

never did it, so I discharged [T.W.]’’ (Tr. 

428.) On the issue of suspecting [T.W.] 

may be diverting, Respondent testified: 

‘‘Intuitively I felt there was something 

wrong with this patient, and I couldn’t 

in just a few visits really tell what— 

what [T.W.] was up to. But in retrospect, 

he was one of the patients that sold, 

along with one other patient that sold 

* * * .’’ (Tr. 429.) 

I do not find Respondent’s testimony 

credible. Contrary to his assertion that 

he ‘‘discharged’’ [T.W.] because of lack 

of an X-ray following the November 21, 

2006 appointment, the patient chart 

reflects a follow-up note dated January 

15, 2007, stating in part ‘‘Refill med 

Patient stable * * * Need to repeat CT 

scan * * * .’’ (Gov’t Ex. 16 at 9.) There 

is no credible evidence of record to 

support the suggestion that [T.W.] was 

discharged by Respondent at any point 

prior to the January 31, 2007 chart note 

indicating [T.W.] had been arrested for 

‘‘selling.’’ 49 Accordingly, I accept the 

findings and opinions of Dr. Gagne ́

pertaining to extreme deviations from 

the standard of practice as noted above, 

which are well supported and 

consistent with other credible evidence 

of record. 

In addition to the foregoing, 

Respondent also testified at various 

points that the nine patient files 

admitted as evidence may be 

incomplete, or may otherwise have been 

altered, but offered no credible evidence 

to support this suggestion.50

Respondent suggested staff problems 

may have been the cause, but testified 

that ‘‘overall I’m responsible because 

I’m the physician, owner of the practice; 

but when you have difficulties with 

staff, they can burn you, they can burn 

you bad.’’ (Tr. 353.) I do not find 

credible Respondent’s testimony 

suggesting that his files would have 

been complete but for staff neglect or 

tampering. As an initial matter, there is 

no objective evidence of record to 

support Respondent’s claim. To the 

contrary, as discussed above, the 

objective record in numerous instances 

calls into question the accuracy of 

Respondent’s chart entries, 

Respondent’s testimony, or both.51

Additionally, the overall credibility of 

Respondent’s testimony was 

significantly undermined in numerous 

other material areas, making it less 

likely that Respondent’s unsupported 

claims of tampering are true. In any 

event, Respondent is ultimately 

responsible for the proper prescribing 

and dispensing of controlled substances. 

21 CFR § 1306.04. 

Respondent also testified that he 

never received copies of the fifty to 

seventy files seized by the police in 

August 2008, and maintained that he 

was unaware the files had been returned 

to his attorney. (Tr. 325–26.) On the 

issue of seized files, DI Lewis testified 

that after the patient files were seized 

from Respondent pursuant to a search 

warrant, two copies were made and one 

‘‘copy of these records w[as] returned 

through [Respondent’s] attorney at the 

time, and a second copy was provided 

to the Medical Board of California.’’ (Tr. 

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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Notices 19337 

52At no time during pre-hearing proceedings did 

Respondent raise by motion or otherwise this issue 

of unavailable files despite numerous opportunities 

to do so, as more fully explained in the procedural 

portion of this Recommended Decision. 

Respondent’s suggestion in testimony that the 

missing files impeded his ability to take care of his 

patients is not a relevant issue in the instant 

proceeding, even if true, because Respondent’s 

misconduct at issue in this proceeding predated the 

seizure of the nine patient files discussed above. 

(Tr. 325.) 

53See 21 CFR § 1306.04(a); 21 U.S.C. § 841(a)(1); 

and Cal. Health & Safety code §§ 11217; 11153(a) 

and 11156(a); Cal. Bus. & Prof. Code §§ 2241; 

2442(a) and 3600. 

54See also Hoxie v. DEA, 419 F.3d 477, 484 (6th 

Cir. 2005) (decision to revoke registration 

‘‘consistent with the DEA’s view of the importance 

of physician candor and cooperation.’’) 

55No further evidence or explanation at hearing 

of term ‘‘wet reckless’’ was offered, although as a 

matter of California practice the term refers to 

violations of Cal. Veh. Code § 23103.5 (West 2009). 

See, e.g., People v. Claire, 280 Cal. Rptr. 269, 271 

n.2 (Cal. Ct. App. 1991) (‘‘For the sake of 

convenience, we adopt this sodden terminology.’’). 

56Respondent presented testimony regarding 

events surrounding his arrest for driving under the 

influence, including testimony of consumption of 

‘‘one’’ glass of ‘‘ale.’’ I note that Respondent’s 

testimony differs in various respects from the 

California Highway Patrol report, including 

notations in the police reports that Respondent 

admitted to drinking two beers. (See Gov’t Ex. 7 at 

2, 10.) In any event, given the absence of other 

evidence or explanation for the discrepancies, I 

generally accept the testimony of Respondent that 

this was an isolated incident involving 

consumption of a relatively small quantity of 

alcohol. I also accept Respondent’s testimony that 

he completed a class on alcohol addiction. 

57Respondent’s answer regarding the ‘‘third’’ 

prescription is at best non-responsive. Whether or 

not the third one was a metabolite of 

benzodiazepine does not respond to the substantive 

issue of whether Respondent had a prescription for 

the controlled substance, nor does it explain 

Respondent’s earlier testimony that he thinks it was 

‘‘Pristiq.’’ No other testimony or evidence was 

offered. 

58 Gov’t Ex. 6 at 3; 21 U.S.C. § 844(a); 21 CFR 

§ 1306.04(a); Cal. Bus. & Prof. Code. § 4060. 

289.) The issue of whether Respondent 

ever received copies of his patient files 

from his then-attorney is not directly 

relevant to the instant case, because it 

is undisputed that Respondent received 

copies of the patient files discussed 

herein well in advance of hearing.52

For the foregoing reasons, I find by 

substantial evidence that Respondent 

issued a substantial number of 

controlled substance prescriptions for 

other than a legitimate medical purpose 

and outside the usual course of 

professional practice, in violation of 

federal and state law.53 This finding 

weighs heavily in favor of a finding 

under Factors Two and Four of 21 

U.S.C. § 823(f) that Respondent’s 

registration would be inconsistent with 

the public interest. 

Factor 5: Such Other Conduct Which 

May Threaten the Public Health and 

Safety 

Under Factor Five, the Deputy 

Administrator is authorized to consider 

‘‘other conduct which may threaten the 

public health and safety.’’ 5 U.S.C. 

§ 823(f)(5). The Agency has accordingly 

held that ‘‘where a registrant has 

committed acts inconsistent with the 

public interest, the registrant must 

accept responsibility for his or her 

actions and demonstrate that he or she 

will not engage in future misconduct. 

Patrick W. Stodola, 74 Fed. Reg. 20,727, 

20,734 (DEA 2009).54 A ‘‘[r]espondent’s 

lack of candor and inconsistent 

explanations’’ may serve as a basis for 

denial of a registration. John Stanford 

Noell, M.D., 59 Fed. Reg. 47,359, 47,361 

(DEA 1994). Additionally, 

‘‘[c]onsideration of the deterrent effect 

of a potential sanction is supported by 

the CSA’s purpose of protecting the 

public interest.’’ Joseph Gaudio, M.D., 

74 Fed. Reg. 10,083, 10,094 (DEA 2009). 

There was evidence presented at 

hearing pertaining to ‘‘other conduct 

which may threaten the public health 

and safety.’’ 5 U.S.C. § 823(f)(5). The 

OSC alleges that Respondent was 

arrested for driving under the influence 

of controlled substances on June 13, 

2008, and that toxicology results 

revealed the presence of the controlled 

substances marijuana, modafinil, 

oxazepam and temazepam, for which 

Respondent lacked a prescription. The 

Government’s evidence at hearing 

included the testimony of DI Lewis, 

along with related alcohol and 

toxicology reports and California 

Highway Patrol arrest reports. (Gov’t 

Exs. 6 & 7.) DI Lewis testified in 

substance that based on his 

investigation, including a review of a 

CURES Report, there were 

corresponding prescriptions for 

identified controlled substances in 

Respondent’s system with the exception 

of temazepam and marijuana. (Tr. 278– 

79.) 

Respondent argues in substance that 

the ‘‘sole conviction for a ‘wet and 

reckless’ misdemeanor, to which 

Respondent pleaded guilty, and which 

there is little evidence of any drugs for 

which he did not have a valid 

prescription,’’ as a single error, ‘‘is not 

any indication of impairment or abuse, 

nor is there any other evidence of 

impairment or abuse.’’ (Resp’t Br. at 8– 

9.) Respondent presented testimony 

from Dr. Markowitz, who testified in 

substance that he is board-certified and 

currently practicing psychiatry. (Tr. 

257–58.) Dr. Markowitz testified that he 

began treating Respondent in 2005, 

noting that Respondent was ‘‘pretty 

severely depressed at the time,’’ for 

which Dr. Markowitz prescribed 

medications and Respondent ‘‘improved 

markedly pretty quickly.’’ (Tr. 259.) Dr. 

Markowitz diagnosed Respondent with 

major depression along with generalized 

anxiety disorder, noting past stressors of 

divorce, health, child visitation and 

financial issues. (Tr. 260.) Dr. 

Markowitz further testified that upon 

review of the toxicology document 

(Gov’t Ex. 6) he prescribed two of the 

listed medications, namely clorazepate, 

sold under the trade name Tranxene, 

and Provigil, referred to on the 

toxicology report as ‘‘modafinil.’’ (Tr. 

263–64.) Dr. Markowitz also opined that 

Respondent is not ‘‘depressed at this 

time’’ and ‘‘from a psychiatric 

perspective, I don’t have any issues with 

his ability to practice.’’ (Tr. 265.) 

David Smiley Purvis also credibly 

testified to counseling Respondent on a 

weekly basis since May 2008 for anger 

and frustration management issues 

related to family matters. (Tr. 292–93.) 

Respondent presented testimony in 

response to the June 2008 arrest, along 

with testimony explaining his health 

and other personal issues leading up to 

his August 2008 surrender of 

registration. Respondent testified in 

substance to having serious health 

issues and surgery between 2000 and 

2002, as well as surgery again in 2004, 

and a heart condition in 2005 that 

involved inpatient treatment. (Tr. 307.) 

Additionally, Respondent testified to 

personal problems impacting his life 

including a 2004 divorce with custody 

issues involving his child. (Tr. 313–14.) 

Respondent further testified to ongoing 

issues with depression, staff problems 

in his office, and two break-ins and 

thefts from his office in 2007. 

Turning to the June 2008 arrest, 

Respondent testified to pleading to a 

‘‘wet reckless’’ charge,55 and then took 

six months of classes which ‘‘were 

about alcohol addiction.’’ 56 (Tr. 330.) 

Respondent testified that he was taking 

three medications at the time: 

‘‘Provigil,’’ ‘‘Tranxene,’’ and an 

antidepressant which Respondent 

thinks was ‘‘Pristiq.’’ (Tr. 328.) 

Respondent testified that all three were 

prescribed by Dr. Markowitz. 

Respondent’s counsel then reminded 

Respondent that Dr. Markowitz only 

identified two prescriptions, ‘‘but you 

mentioned you were on three 

medications,’’ to which Respondent 

stated ‘‘[w]ell the third one was the 

metabolite of benzodiazepine.’’ 57

I find by a preponderance of the 

evidence that Respondent used 

controlled substances, namely 

temazepam and marijuana, without a 

valid prescription and contrary to state 

and federal law in or about June 2008.58

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59 In light of the absence of other evidence of 

controlled substance and alcohol abuse, the passage 

of time, and Respondent’s attendance at alcohol 

addiction classes, I give this issue little overall 

weight for purposes of my recommended decision. 

Respondent’s argument that he was 

prescribed all of the controlled 

substances in his system is directly 

contradicted by the credible testimony 

of Dr. Markowitz and DI Lewis. I find no 

evidence of any alcohol or other nonprescribed controlled substance use by 

Respondent after June 2008, which is 

consistent with Dr. Markowitz’s 

testimony and opinion that Respondent 

is not currently suffering from 

depression. 

Agency precedent has ‘‘long held that 

a practitioner’s self-abuse of a controlled 

substance is a relevant consideration 

under factor five and has done so even 

when there is no evidence that the 

registrant abused his prescription 

writing authority.’’ Tony T. Bui, M.D., 

75 Fed. Reg. 49,979, 49,989 (DEA 2010). 

Respondent’s unlawful conduct in June 

2008, which was associated with his use 

of alcohol and non-prescribed 

controlled substances, is clearly an 

‘‘indication of impairment or abuse’’ at 

least in June 2008, and Respondent’s 

argument to the contrary is without 

merit. That said, Respondent’s conduct 

appears to be a relatively isolated event. 

Respondent testified to completing a 

class on alcohol addiction and there is 

no evidence to support a finding of 

alcohol or controlled substance abuse 

after June of 2008. See Azen v. DEA, 

1996 WL 56114 at *2 (9th Cir. Feb. 9, 

1996) (impressive evidence of 

rehabilitation and continued abstinence 

important consideration). Accordingly, I 

find Respondent’s conduct in June 2008 

to be inconsistent with the public 

interest and a relevant consideration 

weighing somewhat against 

registration.59 See David E. Trawick, 

D.D.S., 53 Fed. Reg. 5326, 5326 (DEA 

1988) (holding that ‘‘offences or 

wrongful acts committed by a registrant 

outside of his professional practice, but 

which relate to controlled substances 

may constitute sufficient grounds’’ for 

denying relief favorable to Respondent, 

where Respondent had history of 

alcohol and controlled substances 

abuse). 

Because the Government has made 

out a prima facie case against 

Respondent, a remaining issue in this 

case is whether Respondent has 

adequately accepted responsibility for 

his past misconduct such that his 

registration might nevertheless be 

consistent with the public interest. See 

Patrick W. Stodola, 74 Fed. Reg. 20,727, 

20,734 (DEA 2009). Respondent argues 

generally that the Government has failed 

to demonstrate that granting Respondent 

a new registration would be inconsistent 

with the public interest. But across 

various dimensions, the record reveals 

that Respondent has not sustained his 

burden in this regard. In fact, as 

discussed above, Respondent’s 

testimony in numerous material 

instances was not credible and reflected 

an overall lack of admission of past 

misconduct, let alone acceptance of 

responsibility. The passage of time since 

Respondent’s misconduct is of no 

consequence with regard to the issue of 

acceptance of responsibility. ‘‘DEA has 

long held that ‘[t]he paramount issue is 

not how much time has elapsed since 

[his] unlawful conduct, but rather, 

whether during that time * * * 

Respondent has learned from past 

mistakes and has demonstrated that he 

would handle controlled substances 

properly if entrusted with a’ new 

registration.’’ Robert L. Dougherty, M.D., 

76 Fed. Reg. 16,823, 16,835 (DEA 2011) 

(citing Leonardo V. Lopez, M.D., 54 Fed. 

Reg. 36,915, 36,915 (DEA 1989) and 

Robert A. Leslie, M.D., 68 Fed. Reg. 

15,227, 15,227 (DEA 2003)). 

Respondent’s testimony with regard to 

his June 2008 misconduct, and his 

misconduct pertaining to Factors Two 

and Four, clearly indicate a complete 

lack of acceptance of responsibility. 

I find that Respondent’s lack of 

credibility during numerous material 

portions of his testimony weighs heavily 

in favor of denying Respondent’s 

application. See Hoxie v. DEA, 419 F.3d 

477, 483 (6th Cir. 2005) (DEA properly 

considers physician’s candor, 

forthrightness in assisting investigation 

and admitting of fault as important 

factors in determining whether 

registration is consistent with public 

interest). In light of the foregoing, 

Respondent’s evidence as a whole fails 

to sustain his burden to accept 

responsibility for his misconduct and 

demonstrate that he will not engage in 

future misconduct. I find that Factor 

Five weighs heavily in favor of a finding 

that Respondent’s registration would be 

inconsistent with the public interest. 

VI. Conclusion and Recommendation 

After balancing the foregoing public 

interest factors, I find that the 

Government has established by 

substantial evidence a prima facie case 

in support of denying Respondent’s 

application for registration, based on 

Factors Two, Four and Five of 21 U.S.C. 

§ 823(f). Once DEA has made its prima 

facie case for revocation or denial, the 

burden shifts to the respondent to show 

that, given the totality of the facts and 

circumstances in the record, revoking or 

denying the registration would not be 

appropriate. See Morall v. DEA, 412 

F.3d 165, 174 (D.C. Cir. 2005); 

Humphreys v. DEA, 96 F.3d 658, 661 

(3d Cir. 1996); Shatz v. United States 

Dep’t of Justice, 873 F.2d 1089, 1091 

(8th Cir. 1989); Thomas E. Johnston, 45 

Fed. Reg. 72, 311 (DEA 1980). 

Additionally, where a registrant has 

committed acts inconsistent with the 

public interest, he must accept 

responsibility for his actions and 

demonstrate that he will not engage in 

future misconduct. See Patrick W. 

Stodola, 74 Fed. Reg. 20,727, 20,735 

(DEA 2009). Also, ‘‘[c]onsideration of 

the deterrent effect of a potential 

sanction is supported by the CSA’s 

purpose of protecting the public 

interest.’’ Joseph Gaudio, M.D., 74 Fed. 

Reg. 10,083, 10,094 (DEA 2009). An 

agency’s choice of sanction will be 

upheld unless unwarranted in law or 

without justification in fact. A sanction 

must be rationally related to the 

evidence of record and proportionate to 

the error committed. See Morall v. DEA, 

412 F.3d 165, 181 (D.C. Cir. 2005). 

Finally, an ‘‘agency rationally may 

conclude that past performance is the 

best predictor of future performance.’’ 

Alra Laboratories, Inc. v. DEA, 54 F.3d 

450, 452 (7th Cir. 1995). 

I recommend denial of Respondent’s 

application for a COR. I find the 

evidence as a whole demonstrates that 

Respondent has not accepted 

responsibility and his registration 

would be inconsistent with the public 

interest. Respondent’s overall lack of 

candor while testifying at hearing is 

fully consistent with a denial of 

Respondent’s application for a DEA 

COR. 

Dated: April 29, 2011. 

Timothy D. Wing, 

Administrative Law Judge. 

[FR Doc. 2012–7619 Filed 3–29–12; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

[Application No. D–11679] 

Notice of Amendment to Proposed 

Exemption Sammons Enterprises, Inc. 

Employee Stock Ownership Plan (the 

ESOP); Located in Dallas, TX 

AGENCY: Employee Benefits Security 

Administration, U.S. Department of 

Labor. 

ACTION: Notice of amendment to 

proposed exemption. 

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