3630 Federal Register / Vol. 80, No. 15 / Friday, January 23, 2015 / Notices 

needed) for the conclusion that Registrant has 

committed such acts as to render his registration 

‘‘inconsistent with the public interest.’’ 21 U.S.C. 

824(a)(4). 

As for the allegation that on March 9, 2013, 

Registrant made a false statement to a West Virginia 

Board Investigator, the Board itself apparently did 

not pursue the allegation, and given the extensive 

evidence of Registrant’s misconduct, I deem it 

unnecessary to address it. 

7Based on the extensive and egregious nature of 

the misconduct proved by the Government, I 

conclude that the public interest necessitates that 

this Order be effectively immediately. 21 CFR 

1316.67. 

Loss of State Authority Grounds 

The Government also seeks the 

revocation of Registrant’s registration on 

the separate and independent ground 

that he no longer holds a valid medical 

license in West Virginia, and thus lacks 

authority to dispense controlled 

substances in the State in which he is 

registered with DEA. Pursuant to 21 

U.S.C. 824(a)(3), the Attorney General is 

authorized to revoke or suspend a 

registration ‘‘upon a finding that the 

registrant . . . has had his State license 

or registration suspended, revoked, or 

denied by competent State authority 

and is no longer authorized by State law 

to engage in the . . . distribution or 

dispensing of controlled substances.’’ 

With respect to a practitioner, ‘‘DEA has 

repeatedly held that the possession of 

authority to dispense controlled 

substances under the laws of the State 

in which a practitioner engages in 

professional practice is a fundamental 

condition for obtaining and maintaining 

a practitioner’s registration.’’ James L. 

Hooper, 76 FR 71371, 71371 (2011) 

(citing Leonard F. Faymore, 48 FR 

32886, 32887 (1983)), pet. for rev. 

denied, Hooper v. Holder, 481 Fed. 

Appx. 826, 828 (4th Cir. June 6, 2012) 

(unpublished). 

This rule derives from the text of two 

provisions of the CSA. First, Congress 

defined ‘‘the term ‘practitioner’ [to] 

mean [ ] a physician . . . or other 

person licensed, registered or otherwise 

permitted, by . . . the jurisdiction in 

which he practices . . . to distribute, 

dispense, [or] administer . . . a 

controlled substance in the course of 

professional practice.’’ 21 U.S.C. 

802(21). Second, in setting the 

requirements for obtaining a 

practitioner’s registration, Congress 

directed that ‘‘[t]he Attorney General 

shall register practitioners . . . if the 

applicant is authorized to dispense . . . 

controlled substances under the laws of 

the State in which he practices.’’ 21 

U.S.C. 823(f) (emphasis added). 

Because Congress has clearly 

mandated that a practitioner possess 

state authority in order to be deemed a 

practitioner under the Act, DEA has 

held repeatedly that revocation of a 

practitioner’s registration is the 

appropriate sanction if the practitioner 

is no longer authorized to dispense 

controlled substances under the laws of 

the State in which he practices 

medicine. See, e.g., Calvin Ramsey, 76 

FR 20034, 20036 (2011); Sheran Arden 

Yeates, M.D., 71 FR 39130, 39131 

(2006); Dominick A. Ricci, 58 FR 51104, 

51105 (1993); Bobby Watts, 53 FR 

11919, 11920 (1988). 

Here, I have taken official notice of 

the West Virginia Medical Board’s Final 

Order which revoked Registrant’s 

medical license effective with the entry 

of the Order. Accordingly, I conclude 

that Registrant is without authority 

under West Virginia law to handle 

controlled substances in the State in 

which he holds his registration. Because 

Registrant no longer meets the CSA’s 

requirement that he be currently 

authorized to dispense controlled 

substances in the State in which he 

holds his registration, I will order that 

his registration be revoked for this 

reason as well. See Craig Bammer, 73 

FR 34327, 34329 (2008); Richard 

Carino, M.D., 72 FR 71955, 71956 (2007) 

(citing cases). 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 824(a)(3) & (4), 

as well as 28 CFR 0.100(b) and 0.104, I 

order that DEA Certificate of 

Registration BV3249643, issued to Jose 

Raul S. Villavicencio, M.D., be, and it 

hereby is, revoked. I further order that 

any application of Jose Raul S. 

Villavicencio, M.D., to renew or modify 

his registration, be, and it hereby is, 

denied. This Order is effectively 

immediately.7

Dated: December 30, 2014. 

Thomas M. Harrigan, 

Deputy Administrator. 

[FR Doc. 2015–01221 Filed 1–22–15; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 13–37] 

Samuel Mintlow, M.D.; Decision and 

Order 

On July 2, 2013, the Deputy Assistant 

Administrator, Office of Diversion 

Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Samuel Mintlow, M.D. 

(hereinafter, Respondent), of Conyers, 

Georgia. ALJ Ex. 1. The Show Cause 

Order proposed the revocation of 

Respondent’s DEA Certificate of 

Registration BM0288983, which 

authorizes him to dispense controlled 

substances in schedules II through V, 

and the denial of any pending 

applications to renew or modify his 

registration, on the ground that his 

‘‘registration is inconsistent with the 

public interest.’’ Id. (citing 21 U.S.C. 

823(f) and 824(a)(4)). 

The Show Cause Order specifically 

alleged that around January 2011, one 

Charles Thomas Laing, a resident of 

Tennessee, and one Mark Del Percio, a 

resident of South Florida, neither of 

whom is a licensed medical 

professional, decided to open a pain 

management clinic which was named 

Liberty Wellness Center (hereinafter, 

Liberty or LWC) in Norcross, Georgia. 

Id. at 2. The Order alleged that in 

January 2011, Respondent was hired to 

treat Liberty’s patients and to distribute 

controlled substances, and that through 

April 2012, Liberty ‘‘unlawfully 

distributed controlled substances 

through prescriptions issued under 

[Respondent’s] registration for no 

legitimate medical purpose’’ including 

highly abused drugs such as oxycodone, 

hydrocodone, alprazolam, and 

carisoprodol. Id. 

The Order further alleged that the 

majority of Liberty’s patients (687) were 

from Tennessee (while 54 were from 

Georgia), and that 50 of the Tennessee 

patients lived in the same town 

(Rogersville) as Charles Laing (with 

sixteen living on the same road), and 

that this town was located 254 miles 

from Liberty. Id. The Show Cause Order 

then alleged that between January and 

June 2011, ‘‘Laing recruited 

approximately 20–25 [persons] to travel 

to [Liberty] and obtain’’ prescriptions 

for oxycodone 30mg from Respondent, 

and that they provided the oxycodone to 

Laing who then sold the drugs. Id. The 

Order alleged that Laing subsequently 

pled guilty in federal district court to 

conspiracy to distribute and possess 

with the intent to distribute oxycodone, 

in violation of 21 U.S.C. 846 and 

841(b)(1)(c). Id. at 3. 

Next, the Show Cause Order alleged 

that ‘‘between February 2011 and April 

2012, [Respondent] unlawfully 

distributed approximately 1,950 

oxycodone’’ 30mg tablets, ‘‘by issuing 

prescriptions’’ to one Terrance Q. 

Williams, an alleged associate of Laing, 

who also sponsored various other 

individuals from Greenville, Tennessee. 

Id. The Order alleged that Williams 

would pay the costs of a sponsored 

person’s trip, including the amount 

charged by Liberty and by the pharmacy 

which filled the prescriptions, and that 


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1The Order then set forth various factual 

allegations related to each of the seven undercover 

visits. ALJ Ex. 4–6. 

2But see R.D. at 107 (Conclusion of Law Number 

Seven) (stating that ‘‘between December 2011 and 

April 2012 the Respondent issued prescriptions . . 

. for controlled substances that were not for a 

legitimate medical need and were not issued in the 

ordinary course of a professional medical 

practice’’). The Recommended Decision contains no 

explanation for this inconsistency. 

the latter would provide a percentage of 

the oxycodone to Williams, who sold 

the drugs to persons including Del 

Percio. Id. The Order then alleged that 

while Williams and the persons he 

sponsored complained of pain, 

Respondent did little or nothing to 

verify their complaints and that 

Respondent ‘‘repeatedly and 

deliberately ignored red flags that could 

or did indicate likely paths of diversion 

while prescribing controlled substances 

to Williams.’’ Id. The Order also alleged 

that on February 8, 2013, Williams pled 

guilty in federal district court to one 

count of conspiracy to distribute and 

possess with the intent to distribute 

oxycodone, in violation of 21 U.S.C. 846 

and 841(b)(1)(c). Id. 

The Show Cause Order next alleged 

that ‘‘[b]etween March 2011 and April 

2012, [Respondent] unlawfully 

distributed 1,560 oxycodone [30mg] 

tablets by issuing prescriptions to 

Jessica R. Bernard,’’ who resided in 

Rogersville, Tennessee and was an 

acquaintance of Williams and Laing. Id. 

The Show Cause Order alleged that 

Bernard also sponsored persons from 

Tennessee, and that she would ‘‘bring 

groups of people’’ to Liberty, 

‘‘sometimes two to three times a week 

to obtain prescriptions for oxycodone 

and other controlled substances’’ from 

Respondent, which she would then 

distribute in Tennessee, and that 

Respondent ‘‘repeatedly and 

deliberately ignored red flags that could 

or did indicate likely paths of diversion 

while prescribing controlled substances 

to Bernard.’’ Id. The Show Cause Order 

then alleged that ‘‘on August 28, 2012,’’ 

Bernard pled guilty in federal district 

court to one count of conspiracy to 

distribute and possess with the intent to 

distribute oxycodone, in violation of 21 

U.S.C. 846 and 841(b)(1)(c). Id. at 3–4. 

Finally, the Show Cause Order alleged 

that between August 2 and December 1, 

2011, DEA conducted seven undercover 

visits, during which Respondent issued 

controlled substance prescriptions to 

three undercover officers (UC), ‘‘for 

other than a legitimate medical purpose 

or outside the usual course of 

professional practice.’’ Id. at 4 (citing 21 

CFR 1306.04(a); Ga. Code Ann. 16–13– 

41(f)). The Show Cause Order also 

alleged that Respondent ‘‘violated 

Georgia medical practice standards’’ by 

failing ‘‘to maintain appropriate patient 

records that supported the prescribing 

of controlled substances and’’ by failing 

‘‘to conduct an appropriate physical 

examination or maintain substantial 

supporting documentation to support 

large doses of narcotic medication.’’ Id. 

(citing Ga. Comp. R. & Regs. 360–3- 

.02(7) and 360–3-.02(14)). Id.1 Finally, 

with respect to UC3, the Show Cause 

Order alleged that Respondent further 

violated Agency regulations by 

prescribing oxycodone to him knowing 

that he was dependent on narcotics. Id. 

at 6 (citing 21 CFR 1306.04(c) and 

1306.07). 

On August 5, 2013, Respondent 

requested an extension of time to 

respond to the Order to Show Cause. 

ALJ Ex. 2. Therein, Respondent stated 

that he received the Order to Show 

Cause on July 23, 2013. Id. The case was 

then placed on the docket of the Office 

of Administrative Law Judges and 

assigned to ALJ Christopher B. McNeil. 

The next day, the ALJ found that 

Respondent’s request ‘‘should be treated 

as a request for a hearing,’’ and issued 

an Order for Prehearing Statements and 

Setting the Matter for Hearing. ALJ Ex. 

3. 

Following pre-hearing procedures, the 

ALJ conducted an evidentiary hearing in 

Atlanta, Georgia on October 8–9, 2013, 

at which both parties called witnesses to 

testify and submitted various exhibits 

for the record. Following the hearing, 

both parties submitted briefs containing 

their proposed findings of fact, 

conclusions of law, and argument. 

On December 18, 2013, the ALJ issued 

his recommended decision (hereinafter, 

R.D.). Therein, the ALJ found that ‘‘the 

Government has established its prima 

facie case by at least a preponderance of 

the evidence, and [that] Respondent had 

failed to rebut that case through a 

demonstration of sufficient 

remediation.’’ R.D. 108. The ALJ thus 

recommended that Respondent’s 

registration be revoked and that any 

pending application be denied. Id. 

Most significantly, the ALJ found that 

‘‘between January 2011 and April 2012 

. . . Respondent issued prescriptions 

. . . for controlled substances, 

including oxycodone and Xanax to [ten 

patients] and to [three] undercover DEA 

agents . . . under conditions that were 

inconsistent with the usual course of 

professional practice for [a] physician in 

Georgia and that were not for a 

legitimate medical purpose.’’ R.D. at 102 

(Finding of Fact Number 4).2 As support 

for his conclusion, the ALJ found that 

Respondent prescribed controlled 

substances ‘‘based on a diagnosis of 

pain, without obtaining and sufficiently 

verifying the patient’s medical history 

including his or her history of 

prescription medications,’’ and 

‘‘without first conducting a physical 

examination sufficient to determine the 

necessity of opioid treatment.’’ R.D. at 

103. The ALJ also relied on his findings 

that Respondent ‘‘fail[ed] to use 

medication and other modalities of 

treatment based on generally accepted 

or approved indications with proper 

precautions to avoid adverse physical 

reactions, habituation, or addiction’’; 

that he prescribed controlled substances 

‘‘under conditions where the medical 

records fail to contain sufficient indicia 

to support diagnoses warranting 

narcotic pain therapy’’; and that he 

‘‘prescrib[ed] controlled substances to 

patients who without demonstrating 

legitimate medical reasons travelled 

from out of state and from long 

distances.’’ Id. The ALJ thus concluded 

that the evidence supported a finding 

that Respondent’s continued registration 

‘‘is inconsistent with the public 

interest’’ and supported the revocation 

of his registration.’’ Id. at 107. 

The ALJ further found that 

‘‘Respondent has failed to affirmatively 

acknowledge specific acts of improper 

prescribing . . . and failed to establish 

by . . . substantial evidence effective 

steps taken in remediation.’’ Id. at 108. 

The ALJ thus concluded that ‘‘the 

Government has established cause to 

revoke Respondent’s . . . registration and 

to deny all pending applications,’’ and 

recommended that I revoke 

Respondent’s registration and deny any 

pending application to renew or modify 

his registration. Id. 

Both parties filed exceptions to the 

ALJ’s recommended decision. 

Thereafter, the record was forwarded to 

me for final agency action. Having 

considered the entire record, including 

the parties’ exceptions, I adopt the ALJ’s 

ultimate conclusions that the 

Government has met its prima facie 

burden of showing that Respondent’s 

continued registration is inconsistent 

with the public interest and that 

Respondent has not produced sufficient 

evidence to rebut the Government’s 

case. Accordingly, I will order that 

Respondent’s registration be revoked 

and that any pending application be 

denied. I make the following findings. 

Findings 

Respondent’s Registration Status 

Respondent is a medical doctor who 

is apparently licensed by the Georgia 

Composite State Board of Medical 

Examiners. Tr. 330. Respondent also 

holds DEA Certificate of Registration 


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3The Investigators found that the other Liberty 

patients came from the following States in the 

following amounts: South Carolina (21); Virginia 

(37); Kentucky (41); North Carolina (19), Florida 

(11), West Virginia (7), and Arkansas (1). GX 4, at 

1. 

4Of the remaining two patients, one (E.P.) 

received Lortab 10/500mg (a combination drug 

containing hydrocodone) and one (J.P.) was never 

seen by Respondent. GX 3, at 1–2. 

5Having reviewed the entire record, I deem it 

unnecessary to make findings regarding the single 

visit of TFO Jones. 

BM0288983, which authorizes him to 

dispense controlled substances in 

schedules II through V as a practitioner, 

at a registered address in Conyers, 

Georgia. GX 1. Respondent’s registration 

was due to expire on January 31, 2013. 

Id. However, on January 30, 2013, 

Respondent submitted a renewal 

application. GX 2, at 1. While 

Respondent’s application has not been 

approved and remains pending until the 

resolution of this proceeding, because 

the application was timely filed, 

Respondent’s registration remains in 

effect. 5 U.S.C. 558(c). 

The Investigation of Respondent 

In either October or November 2010, 

Respondent answered a newspaper 

advertisement, which apparently sought 

a physician for a pain management 

clinic. Tr. 279; GX 34, at 3. Thereafter, 

Respondent met one Mark Del Percio at 

a restaurant; Del Percio told Respondent 

that he was opening Liberty and that 

while he had interviewed another 

doctor, ‘‘he wanted somebody closer to 

his age.’’ Id. at 280. Del Percio offered 

the job to Respondent, who began 

working at Liberty in January 2011. Id. 

Liberty was located in Norcross, 

Georgia, a suburb of Atlanta. GX 9, at 2; 

Tr. 238, 282. 

Respondent admitted that Del Percio 

told him ‘‘that he had a partner named 

Charles,’’ and ‘‘that Charles would be 

working out of one of the rooms in the 

office,’’ but ‘‘Charles never showed up.’’ 

Tr. 280. Respondent further testified 

that he ‘‘never met Charles,’’ ‘‘never 

talked to [him] on the phone,’’ and 

‘‘didn’t even know his last name.’’ Id. 

Charles’ last name was Laing. Id. at 282. 

Respondent admitted that he knew 

Del Percio was from Florida and that he 

did not have a background in pain 

management. Tr. 349. He also testified 

that he did not ask Del Percio why he 

wanted to open a pain clinic when Del 

Percio had no background in pain 

management. Id. at 348. Respondent 

nonetheless claimed that he did not find 

this unusual. Id. at 349. Nor did 

Respondent ask Del Percio why he 

wanted to open a pain clinic in Georgia, 

even though he acknowledged having 

read about the pill mills in Florida and 

further testified that he knew ‘‘they 

were prescribing an excessive amount of 

oxycodone . . . 120—240 of the 30s, 

and 120 of the 15s.’’ Id. at 350. 

Respondent further testified that he did 

not ask Del Percio about his background 

and did not ‘‘do a criminal check on 

him.’’ Id. at 349. 

According to Respondent, during his 

first month, he saw ‘‘maybe ten people.’’ 

Id. at 281. Because the business was 

slow, Del Percio hired ‘‘a marketing 

person’’; ‘‘[t]he following month, more 

patients began to come in, and the 

following month, even more patients 

began to come in,’’ with ‘‘quite a few’’ 

of the patients coming ‘‘from 

Tennessee.’’ Id. 

Indeed, according to a Task Force 

Officer, Investigators executed a search 

warrant at Liberty pursuant to which 

they seized 881 patient files. Tr. 84, 

226–7; GX 3, at 19. Upon reviewing the 

patient files, the Investigators 

determined that 690 patients (or 78.3%) 

of Liberty’s patients came from 

Tennessee; by contrast, only 54 patients 

lived in Georgia.3 GX 4, at 1. Moreover, 

the Investigators determined that 27 of 

the patients lived on Beech Creek Road 

in Tennessee (including Charles Laing’s 

mother) and in at least nine instances, 

two or three patients lived at the same 

address. 

Based on their review of the 881 

patient files, the Investigators 

determined that 875 patients received 

oxycodone, while six patients did not. 

GX 3, at 19. However, of the six 

patients, four of them received Percocet 

10/325, a combination drug which 

contains ten (10) milligrams of 

oxycodone.4 See id. at 4 (Pt. S.A.), 11 (Pt. 

J.I.), 12 (Pt. J.L.), and 16 (Pt. J.S.). Thus, 

nearly every patient Respondent saw 

received oxycodone, which according to 

a Task Force Officer, is ‘‘the drug of 

choice among pill seekers and 

diverters.’’ Tr. 260. 

In June 2011, Respondent came to the 

attention of DEA after the Hawkins 

County, Tennessee Sheriff’s Office 

(HCSO) executed a search warrant at the 

home of Charles Laing in Rogersville, 

based on information it obtained that 

Laing was involved in trafficking 

oxycodone obtained by persons from 

Liberty. GX 40, at 2. According to a DEA 

Task Force Officer, the HCSO seized 

oxycodone, Xanax and Suboxone 

totaling approximately 300 tablets, as 

well as appointment cards for Liberty. 

Id. at 2. The Investigators also 

determined that Laing co-owned Liberty 

with Del Percio, and that Respondent 

was Liberty’s prescribing physician. Id. 

Thereafter, DEA and the Norcross, 

Georgia Police Department conducted 

surveillance operations at Liberty. 

According to several Investigators, 

Liberty did not have any signage or 

other markings outside the building in 

which it was located, Tr. 76, and when 

the Investigators first went to the clinic, 

‘‘there was no way to know if [they] 

were at the right location.’’ Id. at 77. It 

was not until the next morning when 

the Investigators returned and observed 

an ‘‘abundance of’’ cars with 

‘‘Tennessee tags parked in front of the’’ 

clinic that they knew that they were at 

the right location. Id. 

During their surveillance of the clinic, 

the Investigators observed numerous 

cars arriving at the clinic that had outof-state license plates, including cars 

from Tennessee, Kentucky, North 

Carolina, and Florida. GX 40, at 2. They 

also observed that in some instances, 

the cars had multiple passengers who 

would then enter the clinic. Id. at 2–3. 

Finding their observations to be 

consistent with drug diversion, the 

Investigators decided to conduct 

undercover visits at the clinic to 

determine if Respondent was issuing 

unlawful prescriptions. Id. at 3. 

Between August and December 2011, 

three TFOs conducted a total of seven 

visits.5

The Visits of TFO Vickery 

In his role as L.C., Officer Vickery 

made four visits to Liberty Wellness 

Center, the first of which occurred on 

August 22, 2011. Tr. 158. Vickery 

explained that ‘‘[m]ostly every time I 

was there, every chair was full, so that 

[there] would probably be 30, 35 people 

sitting there, all younger crowds . . . 

the majority of [the patients were] under 

40.’’ Id. at 207. Vickery also testified 

that while in the waiting room, he 

‘‘could overhear [the patients] talking 

back and forth about what they’re 

getting from different doctors, where 

they’re filling at, what pharmacy 

charges what. You would see that a lot 

of the patients would travel in groups.’’ 

Id. at 207–208. 

Officer Vickery further testified 

during the time he spent in the waiting 

room, he was able to identify persons 

acting as ‘‘sponsors.’’ Id. at 208. He 

described a sponsor as someone who 

‘‘takes care of everything as far as 

financial, getting their MRIs, their 

prescriptions filled,’’ and the sponsor 

‘‘would deal with the owner of the 

clinic, up until the point to where . . . 

the patient finally went back to see the 

doctor.’’ Id. 

Officer Vickery testified that he 

observed that only two people worked 

at the clinic, Del Percio and 

Respondent. Del Percio was ‘‘actually 


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6As part of the intake process, Vickery (as were 

the other undercover officers) was required to 

review and sign a Pain Management Agreement. GX 

27, at 9–10. The Agreement contained twenty-two 

paragraphs, including one which states that ‘‘I will 

not share, sell, or trade my medications with 

anyone.’’ Id. at 10. Moreover, at his subsequent 

visits, Vickery was required to complete a Patient 

Comfort Assessment Guide, which included the 

statement and question: ‘‘To sell or divert and [sic] 

of my medication is illegal. Do you give permission 

to this clinic to report any illegal incident?’’ Id. at 

22. The same form also include the question: ‘‘Do 

you understand this clinic has reported a number 

of individuals to authorities for illegal behavior?’’ 

Id. 

7Officer Vickery also testified that when trying to 

obtain oxycodone from Respondent, he referred to 

them as ‘‘30s’’ ‘‘because it’s basically street lingo, 

drug lingo, and that’s what most of the addicts, drug 

dealers, whatever, refer to the oxycodone as . . . by 

their milligrams.’’ Tr. 173–74. 

controlling everything that [was] going 

on out in the front area.’’ Id. at 209–212. 

According to Vickery, once a patient 

entered the waiting room, Del Percio 

would not allow the patient to go 

outside to smoke or go to the parking 

lot, such that if the patient had to leave 

the waiting room before seeing the 

doctor, he or she would have to leave 

the area. Id. at 210. Del Percio’s duties 

included answering the phones, 

arranging appointments, providing the 

patients with the intake forms and 

receiving them back, collecting the 

patients’ payment, answering their 

questions, taking their blood pressure, 

and directing them to provide urine 

samples. Id. at 212–14. Only after the 

initial intake was completed would 

patients be escorted back to 

Respondent’s office. 

Officer Vickery also stated that each 

time he received treatment at Liberty 

Wellness Center he paid $300 in cash. 

Id. at 167. He testified that the clinic 

required cash payments, that it ‘‘didn’t 

do insurance,’’ and was told, ‘‘well, 

we’re in the process of getting our 

insurance accepted, but we haven’t been 

approved for anything so everything’s 

got to be cash at the moment.’’ Id. at 

210–211. 

According to Vickery, Respondent’s 

office had a massage table that served as 

the examination table. Id. at 215. 

Vickery testified that while the table 

was used during the examination done 

by Respondent at his first visit, he 

remained fully clothed. Id. Vickery 

further testified that during his three 

subsequent visits, he remained seated in 

an office chair for the entirety of each 

visit. Id. at 216. 

Officer Vickery explained that he had 

obtained an MRI for another 

investigation and that he presented the 

MRI to Del Percio, along with a false 

Georgia driver’s license showing a 

Newnan, Georgia address, which was 

located approximately 60 miles from the 

clinic. Id. at 160–161. Vickery testified 

that he brought the MRI to the August 

22, 2011 visit because he had been to 

the clinic twice before and that during 

those visits, Del Percio told him he 

needed an MRI before he could be seen 

by Respondent. Id. at 163, 165. Vickery 

also testified that the MRI was of the 

lumbar spine, based on a complaint of 

‘‘LBP’’ or lower back pain. Id. at 164; GX 

27, at 4. 

The MRI Report states that ‘‘[t]here is 

no significant disc disease at L1 through 

L3.’’ GX 27, at 4. However, at L3–L4, it 

states that ‘‘[a] left far posterolateral 

asymmetrical disc protrusion with 

annular tear is noted’’ and that ‘‘[d]isc 

material effaces the exiting left L3 nerve 

root.’’ Id. At L4–L5, it notes a ‘‘posterior 

disc bulging effacing the thecal sac 

without nerve root impingement,’’ and 

that at L5–S1, ‘‘[t]here is low-grade disc 

bulging without significant mass effect.’’ 

Id. The report then states that ‘‘[t]here 

is no extruded disc herniation 

identified. No central canal or 

neuroforaminal canal stenosis is 

identified.’’ Id. 

However, on his medical intake form, 

Vickery listed his chief complaint as 

shoulder pain, and reported that ‘‘with 

medication’’ his pain level was a ‘‘0’’ 

(this ‘‘being no pain’’), and ‘‘without 

medication’’ a ‘‘5.’’ Id. at 5. He 

explained that he did this ‘‘basically to 

see if I could get into the clinic without 

an MRI, like I was told I needed, on an 

ailment or an injury different than what 

I gave them.’’ Tr. 165. However, on the 

third page of the intake form, which 

listed a large number of medical 

conditions, Vickery placed an ‘‘x’’ in the 

blanks corresponding to both his back 

and shoulders.6 GX 27, at 7. 

There are video recordings of Officer 

Vickery’s office visits with Respondent, 

and three computer disc files containing 

recordings of brief exchanges between 

Vickery and Del Percio during the first 

visit. RX G, Disc N–29. 

During the time Officer Vickery spent 

with Respondent, the two discussed 

Vickery’s physical condition and the 

likely reasons for his pain. Respondent 

made no mention of the distance 

between Liberty and Vickery’s home 

address, nor did he ask why Vickery 

had come to Liberty. When Respondent 

asked Vickery if he had a history of back 

injuries, Vickery said no, but that he 

worked in construction and home 

improvement, and that his age was 

‘‘starting to catch up to’’ him. GX 28, at 

2; RX G, Disc N–29. 

Vickery explained that he had tried 

ibuprofen but that ‘‘it just didn’t,’’ and 

that he had got a few ‘‘oxys’’ and they 

worked.7 GX 28, at 2. He then explained 

that he had seen a Dr. Chapman in 

Cartersville, who treated him with 

Dilaudid and Xanax and ‘‘sometimes 

Oxy 30s, sometimes . . . Oxy 15s. It was 

just whatever I needed for the break 

through.’’ Id. at 2–3. Vickery further 

stated that his previous doctor had 

written prescriptions for 100 Dilaudid 

4mg (but did not keep him on the drug 

for ‘‘very long’’), 120 oxy 30s, 90 oxy 

15s for the breakthrough, and 60 Xanax 

2mg. Id. 

When Respondent asked ‘‘where are 

you hurting now,’’ Officer Vickery did 

not deny having pain, but replied: 

‘‘Well, sometimes it’s the shoulder, 

sometimes the lower back. It just comes 

in spurts.’’ Id. at 3. Respondent then 

asked him how bad his lower back pain 

was; Vickery replied, ‘‘Like today, it’s 

not bad, because . . . I hadn’t been 

working because construction has been 

slow.’’ Id. at 4. Respondent then stated: 

‘‘when you’re not working, you don’t 

have much pain is what you told me.’’ 

Id. Vickery agreed with this 

characterization, stating that he ‘‘just 

kept going,’’ adding that Dr. Chapman 

told him to do so. Id. Vickery then told 

Respondent that he was returning to 

work the next week, and he wanted ‘‘to 

get on track so I . . . won’t miss work 

next time.’’ Id. at 4–5. 

When Respondent asked him about 

his pain levels, Officer Vickery said that 

without medication, his pain was 

‘‘probably around a five’’ on a ten-point 

scale, but with medication, it was 

‘‘almost down to zero.’’ Id. at 5. 

Respondent then asked whether Vickery 

had ever had any treatment other than 

pain killers, including epidural 

injections, chiropractic service, physical 

therapy or surgery. Id. He also engaged 

in a lengthy discussion with Vickery 

about his consumption of caffeine, 

learning that Vickery was drinking 

about four 24-ounce cups of coffee a 

day. Id. at 6–8. After Vickery told him 

that he drank very little water each day, 

Respondent stated ‘‘we’re in trouble,’’ 

adding ‘‘what if I told you, you were on 

your way for a dialysis soon?’’ Id. at 8. 

Respondent recommended that Vickery 

cut back on his caffeine consumption 

and increase his daily water intake, 

explaining that caffeine can damage the 

kidneys and contribute to back pain. Id. 

at 9. 

At this point, Respondent referred to 

a model of a spine, showing those areas 

when the discs lose water and 

explaining that this can cause pain. See 

RX G, Disc N–29. Respondent then 

reviewed Vickery’s MRI report, and 

explained that the MRI showed that he 

had bulging discs, one effacing the 

thecal sac; one with material affecting 

the spinal nerve roots; and still another, 

which had an annular tear resulting in 


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8There are seven video files on the disc, six of 

which depict people sitting in the clinic’s waiting 

room or Officer Vickery’s actions before or after the 

office visit, and have no probative value. RX G, Disc 

N–42. 

a bulge pressing on a nerve end. GX 28, 

at 10–11. Respondent warned Vickery 

that drinking caffeinated coffee and not 

that much water would cause more 

pain. Id. at 11. He then stated that ‘‘the 

first thing we need to do is work on 

these—getting rid of a lot of this caffeine 

and get you up to maybe half a gallon 

of water. I think that’s going to make a 

big difference in your pain. It may get 

rid of all your pain.’’ Id. 

Respondent had Vickery sit on the 

exam table and then lie on his back, at 

which point, he directed Vickery to lift 

his legs, one at a time, ‘‘straight up,’’ 

and asked if this ‘‘bothered [him] at all’’; 

Vickery answered ‘‘no.’’ Id. Respondent 

then directed Vickery to turn over onto 

his stomach, palpated Vickery’s back in 

several areas, asking if it bothered him. 

Id. at 12. In response to the first 

palpation, Vickery replied that ‘‘It’s a 

little tender right there, yeah.’’ Id. The 

next three times, Vickery denied any 

pain. Id. However, the fifth time, 

Vickery replied ‘‘Well, it’s a little sore 

to me because I spent [yesterday] 

washing my car.’’ Id. 

Respondent then asked Vickery if he 

had tried anti-inflammatories; Vickery 

answered that he had quit taking them 

because they didn’t do anything for him 

and added that the only drug that 

worked for him were the drugs he was 

getting from Chapman—the 30s and the 

‘‘15s every now and then.’’ Id. at 12–13. 

Respondent then asked if he had taken 

Percocet, Vicodin, or Lortab; Vickery 

replied that he had tried Lortab but that 

it didn’t work for him. Id. at 13. 

Respondent stated that Vickery’s ‘‘main 

thing’’ was to get away from the caffeine 

and that he also needed to use the antiinflammatories for three to four months 

for them to work. Id. Respondent also 

asked Vickery if he had tried muscle 

relaxants such as Flexeril or Robaxin; 

Vickery said that he had tried them but 

they ‘‘just never worked.’’ Id. at 13–14. 

After Respondent told Vickery he was 

going to place him on an antiinflammatory, he asked Vickery when 

he had last taken oxycodone. Id. at 14. 

While this visit took place on a Monday, 

Vickery said that he had probably taken 

three tablets late Thursday or early 

Friday morning. Id. Respondent then 

asked Vickery if he took the oxycodone 

because he was hurting or just to take 

them; Vickery did not answer directly, 

replying that ‘‘I could feel something 

coming on.’’ Id. 

Respondent suggested that this was 

because of Vickery’s coffee consumption 

and ‘‘not having enough water in your 

system.’’’ Id. at 15. While he then told 

Vickery that his ‘‘x-rays do show that 

you have a problem, but your exam is 

not showing a whole lot at all,’’ 

Respondent said: ‘‘I’ll try you on maybe 

two or three times a day and see how 

that works for you.’’ Id. He added, 

however: 

I’m not even sure you need that much, 

because, I mean, your x-ray—your x-ray 

shows that your nerves are being pinched on, 

but [unintelligible] I just don’t feel a whole 

lot. Okay. And what that suggests to me is 

that if you get away from the caffeine and 

drink more water, you’re probably not going 

to have any pain at all. 

Id. 

Vickery then asked if could get some 

Xanax for ‘‘the night.’’ Id. While 

Respondent told Vickery that Xanax and 

Oxycodone is not a real good mixture, 

and that they both ‘‘suppress your 

lungs’’ and that he ‘‘may not wake up,’’ 

he agreed to prescribe 30 tablets of 

Xanax 1mg to him. Id. at 15. Vickery 

asked if he could get 60 tablets, 

explaining that ‘‘my wife kind of uses 

them, too’’; Respondent stated, ‘‘No. She 

can’t use your medicine.’’ Id. at 16. 

When Vickery persisted, saying that 

‘‘she takes them every now and then, 

and it’s like, come on,’’ Respondent 

repeated his earlier answer, stating 

‘‘she’s got to get her own medicine,’’ 

and ‘‘[y]ou’ve got to hide your stuff, 

[s]he can’t . . . take your medicine.’’ Id. 

After a further discussion of the 

Vickery’s caffeine use, the visit ended. 

Officer Vickery paid $300 cash to Del 

Percio for the visit. Tr. 167. Respondent 

issued Vickery prescriptions for 90 

tablets of oxycodone 30mg, a schedule 

II narcotic; 30 tablets of Xanax 1mg, a 

schedule IV benzodiazepine; and 60 

tablets Naproxen, a non-controlled drug. 

GX 27, at 2. 

Officer Vickery testified that he not 

been taking oxycodone, notwithstanding 

his representation during the visit. Tr. 

171. He also testified that contrary to 

what he wrote in his medical history, he 

was not being treated by Dr. Chapman, 

and had not been prescribed Xanax or 

Dilaudid. Id. at 172–73. Moreover, he 

had not been taking oxycodone or any 

other prescription drugs. Id. at 171, 173. 

Vickery testified that while he was 

required to provide a urine sample prior 

to his visit with Respondent, he did not 

know what the test results were and 

they were not discussed with him. Id. at 

170. 

On cross-examination, Officer Vickery 

testified that he believed Dr. Chapman’s 

medical office had been closed before 

his initial visit to Liberty. Id. at 201. 

Respondent subsequently testified that 

while he was working at Liberty, he 

‘‘had heard the word ‘pill mill.’ Dr. 

Chapman’s office was shut down and 

they called it a pill mill.’’ Id. at 346. 

However, Respondent otherwise denied 

knowing why Dr. Chapman’s office was 

shut down. Id. While the closure of 

Chapman’s clinic may have resulted in 

Respondent being unable to obtain 

medical records from it, according to 

Officer Vickery, Respondent never 

attempted to obtain his purported 

medical records from Chapman. Id. at 

172. 

On September 22, 2011, Officer 

Vickery returned to see Respondent. Tr. 

179; GX 27, at 20. Recordings were 

made of this visit,8 which were also 

transcribed. See RX G, Disc N–42; GX 

29. Prior to seeing Respondent, Vickery 

completed a form entitled ‘‘Patient 

Comfort Assessment Guide’’ on which 

he wrote that he had back pain and 

circled the words ‘‘aching,’’ ‘‘sharp,’’ 

‘‘nagging,’’ ‘‘unbearable’’ and 

‘‘continuous.’’ GX 27, at 22. Asked by 

the form to rate his pain in the last 

month ‘‘with medication,’’ he indicated 

that it was a ‘‘6’’ ‘‘at its worst,’’ a ‘‘2’’ 

‘‘at its least, and a ‘‘5’’ on ‘‘average.’’ Id. 

He also noted that ‘‘right now,’’ his pain 

was a ‘‘3.’’ Id. Finally, he noted that 

oxycodone 30 provided a level of relief 

of ‘‘3,’’ where 0 was ‘‘no relief’’ and 10 

was ‘‘complete relief.’’ Id. 

Officer Vickery’s visit with 

Respondent lasted just under six 

minutes. See generally RX G, Disc N–42. 

As was the case with the initial visit, 

Vickery was required to provide a urine 

sample for drug screening; however, 

Respondent did not discuss the results 

of either the previous test or this test. 

Tr. 187. Nor did Respondent discuss 

with Vickery his records from any prior 

treating physician. Id. 

Upon being seated in Respondent’s 

office, Officer Vickery commented on 

the number of patients yet to be seen in 

the waiting room while Respondent, 

who was seated at his desk, made notes 

on one of about a dozen medical folders 

before him. GX 29, at 1. Twenty-two 

seconds into the recording, Respondent 

rose from his chair and moved to where 

Vickery was seated. Respondent asked 

Vickery to lean forward, and after six 

seconds or so, during which time no one 

spoke, returned to the chair behind his 

desk. RX G, Disc N–42, clip 7. 

Officer Vickery testified that 

Respondent ‘‘walked over to where I 

was at, took his hand, r[a]n it down my 

back; then went back and sat down at 

his desk.’’ Tr. 181. Vickery stated that in 

running his hands down his back, 

Respondent was ‘‘kind of just like 

pushing down, as you’re going down 

from the top of your neck, down 


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towards your body with the tip of your 

fingers.’’ Id. 

At no time during this visit did 

Respondent inquire of Officer Vickery’s 

pain level, nor did Vickery raise the 

subject. See GX 29; RX G, Disc N–42, 

clip 7. Nonetheless, in the Physical 

Exam section of the Progress Notes for 

this visit, Respondent wrote ‘‘Lumbar— 

severe tenderness over paravertebral 

muscle with [two up arrows] muscle 

tone.’’ GX 27, at 20. Nothing in the 

recording, however, suggests that 

Officer Vickery indicated either by word 

or physical response that he was 

experiencing severe tenderness in any 

part of his body. See GX 29; RX G, Disc 

N–42, clip 7. 

Similarly, the progress note describes 

Officer Vickery’s chief complaint as 

‘‘pain is 5 with medication.’’ GX 27, at 

20. While on the ‘‘Patient Comfort 

Assessment’’ form for this visit, Vickery 

circled ‘‘5’’ as his average pain ‘‘in the 

last month with medication,’’ he also 

circled ‘‘3’’ as his pain ‘‘right now.’’ Id. 

at 22. Moreover, at no point in the 

various recordings of the visit, did 

Vickery assert to either Del Percio or 

Respondent that his current pain level 

was a 5, or even suggest that he was 

then in pain. See GX 29; RX G, Disc N– 

42, clip 7. 

Upon Respondent’s returning to his 

desk, he asked Vickery how the 

medicine was working for him. GX 29, 

at 1. While Vickery said ‘‘It’s fine,’’ he 

then added that someone had told him 

that he was taking Opana 

(oxymorphone) and that it ‘‘was 

working out better for them.’’ Id. at 2. 

Vickery then said that ‘‘you gave me the 

30’s, but I . . . think I still need some 

of those 15’s during the in between the 

times.’’ Id. Respondent then asked 

Vickery if he was taking the antiinflammatory; the latter replied that he 

took some of them but ‘‘I just don’t like 

it.’’ Id. 

After a discussion of Vickery’s 

consumption of both coffee and water, 

Vickery told Respondent that ‘‘it just 

seems like in between my 30’s, I need 

something in between there.’’ Id. at 3. 

When Respondent suggested that ‘‘that’s 

where the Naproxen comes in,’’ Vickery 

replied ‘‘that it just didn’t do anything.’’ 

Id. Respondent told Vickery that while 

the Naproxen ‘‘feel[s] like it’s not doing 

anything, . . . it’s working for you.’’ Id. 

Vickery took issue with Respondent, 

explaining that ‘‘[b]ut then I’m having to 

. . . put some beers on top of it to kind 

of go through all that stuff.’’ Id. 

After asking Vickery if he was ‘‘taking 

90 of the Oxycodone’’ and Vickery 

asked if he could ‘‘up them,’’ 

Respondent agreed and added, ‘‘[w]e’ll 

take you up to 120’’ and ‘‘[s]ee if that 

works better for you.’’ Id. Vickery then 

asked Respondent if he thought that 

Opana was ‘‘worth anything’’; 

Respondent answered that different 

drugs work differently on different 

persons and offered to prescribe Opana, 

while rejecting Vickery’s request to try 

Opana with the Oxy 30s. Id. at 3–4. 

Respondent then told Vickery that he 

could ‘‘go with just the plain Opana by 

itself, or you can go with the 

Oxycodone.’’ Id. at 4. 

Officer Vickery then asked if he got 

the Opana, could he also ‘‘get some of 

the 15’s just in case.’’ Id. When 

Respondent said ‘‘no,’’ Vickery replied: 

‘‘Doc, you killing me, man. Even if I 

float you a little bit extra on the side, 

maybe a couple hundred bucks on the 

side to.’’ Id. Respondent again said 

‘‘no,’’ and then explained that Opana 

came in 10, 20 and 40 milligram dosage 

units. Id. Vickery asked if he could ‘‘get 

the 40’s’’; Respondent replied: ‘‘I would 

try it three times a day’’ and asked 

Vickery if he ‘‘want[ed] to try that?’’ Id. 

Vickery agreed, notwithstanding that 

Respondent told him that Opana was 

‘‘pretty expensive,’’ but then asked for 

some Lortabs for ‘‘in between them,’’ 

adding that the Naproxen ‘‘just doesn’t 

work.’’ Id. at 4–5. Respondent insisted 

that the Naproxen would work with 

time. Id. at 5. 

Apparently upon reviewing the 

prescriptions, Officer Vickery 

complained that Respondent had 

decreased the amount of his Xanax 

prescription. Id. When Respondent 

explained that he had gotten 30 last 

time, Vickery complained that ‘‘they 

didn’t last me all month. . . . They didn’t 

last at all. You being stingy, Doc.’’ Id. 

Vickery’s visit with Respondent then 

ended. 

Respondent gave Vickery three 

prescriptions: one for 90 Opana ER 

40mg, a schedule II controlled 

substance, one for 30 Xanax 1mg, and 

one for 60 Naproxen. GX 27, at 21. 

Moreover, Respondent did not 

document in the medical record 

Vickery’s attempt to buy extra drugs 

from him. Id. at 20. 

Officer Vickery testified that his goal 

in this visit was to determine whether 

he could get more Opana 

(oxymorphone) or oxycodone, and he 

was ‘‘just kind of bargaining to see what 

I could get . . . prescribed to me, just 

by asking for whatever.’’ Tr. 182–183. 

As Vickery put it, the exchange 

recorded during this visit would best be 

described as one between a ‘‘drug dealer 

and a supplier.’’ Id. at 184. 

On October 24, 2011, Officer Vickery 

made a third office visit with 

Respondent. GX 30, at 26. A video 

recording and transcript of the visit 

were entered into evidence. One video 

file captures the office visit from start to 

finish and provides a fairly steady view 

of Respondent from across his office 

desk. RX G, Disc N–49, Clip 4. 

As with the first and second visits, 

Del Percio had Officer Vickery produce 

a urine sample for drug screening, but 

neither he nor Respondent discussed 

the results of this screening with 

Vickery. Tr. 187. Thus, there was no 

discussion of any possible inconsistency 

between what Vickery told Respondent 

about his current use of narcotics and 

the results of his urine screen—although 

Vickery testified that he was not taking 

any medications at the time of this 

office visit. Id. at 188. 

Once again, Vickery completed a 

Patient Comfort Assessment form, in 

which he complained of back pain that 

was ‘‘aching,’’ ‘‘exhausting, ‘‘nagging,’’ 

and ‘‘continuous.’’ GX 27, at 28. Rating 

his various pain levels ‘‘in the last 

month with medication,’’ Vickery 

circled ‘‘O’’ for the ‘‘worst’’ his pain 

was, the ‘‘least’’ it was, and his 

‘‘average’’ level. Id. However, he then 

circled ‘‘3’’ for his pain level ‘‘right 

now.’’ Moreover, while he then wrote 

that ‘‘meds’’ made his pain better, he 

also wrote that Opana 40mg provided 

no relief, oxycodone 30 provided relief 

at a level of 1 (where 0 was ‘‘no relief’’ 

and 10 ‘‘complete relief’’), and that 

Xanax 1mg provided no relief. Id. at 28– 

29. 

The entire office visit with 

Respondent took approximately seven 

minutes. RX G, Disc N–49, Clip 4. About 

two minutes elapsed at the beginning of 

the visit, during which Respondent 

remained seated behind his desk, 

apparently making notes in Vickery’s 

medical record. Id. During this time the 

dialogue between Respondent and 

Officer Vickery focused almost 

exclusively on the medications that 

were prescribed, with Respondent 

asking ‘‘how’s the medicine working for 

you,’’ and Vickery reporting that ‘‘[i]t’s 

good,’’ but that he would ‘‘like to get 

something for’’ break-through. GX 30, at 

2. Respondent then asked Vickery if he 

had ‘‘taken Lortabs’’; Vickery replied 

that ‘‘I may have before,’’ and added 

that he thought ‘‘the Percocets do better 

than the Lortab.’’ Id., See generally RX 

G, Disc N–49, Clip 4. 

Vickery then explained that the 

Opanas ‘‘went pretty quickly,’’ asked 

Respondent if he could ‘‘raise some of 

them or may be up the Percocet,’’ and 

added that ‘‘the Oxy 15’s worked perfect 

for me in between . . . everything.’’ Id. 

Notwithstanding that he had not 

previously prescribed Percocet to 

Vickery, Respondent asked: ‘‘you’re 

taking the Percocet also?’’ Id. Vickery 


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9He also wrote him a prescription for Naproxen. 

answered that he had ‘‘taken them 

before with the Oxy,’’ at which point 

Respondent left his chair and asked if 

he could press on Vickery’s back. Id. 

The entire exam lasted less than 

thirteen seconds, and while the video 

does not show what it involved, Officer 

Vickery testified that this exam involved 

his ‘‘just lean[ing] over in the chair. 

[Respondent] would take his hands, 

both rub from the top to the bottom. . . 

.’’ Tr. 189. As this occurred, Vickery 

stated that he ‘‘was always the getting 

the 30’s . . . and then I’d take the 15’s 

in between’’ and that Chapman ‘‘was 

giving me 180 of the 30’s’’ and ‘‘90 or 

120 of the 15’s in between, something 

like that . . . [a]nd those seemed to get 

me through the whole 28-day cycle.’’ 

GX 30, at 2–3. After Respondent said 

that Liberty used a 30-day cycle and that 

Vickery was ‘‘here a little early,’’ 

Vickery maintained that ‘‘this is the 

appointment he gave me’’ and 

Respondent conceded that it was not 

Vickery’s fault. Id. at 3. 

Vickery explained that he had a hard 

‘‘time getting a ride up here’’ and that 

he had been dropped off by his buddy. 

Id. Vickery then told Respondent that 

his buddy liked Xanax and had asked 

him to give Respondent ‘‘200 bucks and 

see if he’’ would write a prescription for 

Xanax. Id. Respondent laughed; Vickery 

showed him the cash and said: ‘‘I don’t 

know if you can do that and put it in 

my name for an extra—or up my Xanax 

some.’’ Id. at 3–4. Respondent replied: 

‘‘No, we can’t do.’’ Id. at 4. Vickery 

asked: ‘‘Can we do that?’’; Respondent 

answered ‘‘no.’’ Id. 

Vickery then asked if he was getting 

40 Percocet; Respondent said ‘‘right.’’ 

Id. Vickery then complained that 

Respondent was ‘‘stingy,’’ explained 

that he ‘‘was used to what [he] was 

getting,’’ and asked if he could up the 

Xanax prescription because the 30 

tablets ‘‘didn’t get me through two, three 

weeks.’’ Id. When Vickery further 

asserted that he had been getting 60 of 

the two milligram Xanax, Respondent 

stated that he had been ‘‘doing 45.’’ Id. 

Respondent then suggested that if 

Vickery’s friend had a problem with 

anxiety and needed Xanax, he could go 

to a walk-in clinic. Id. Vickery then 

asked: ‘‘so you can’t do nothing?’’; 

Respondent said ‘‘No.’’ Id. 

Respondent gave Vickery 

prescriptions for 90 tablets of Opana 

40mg, 45 tablets of Xanax (an increase 

from 30), and 40 tablets of Percocet 10/ 

325, which was an additional 

prescription.9 GX 27, at 27. On each of 

the controlled substance prescriptions, 

Respondent wrote: ‘‘an emergency exists 

for Rx.’’ Id. 

Here again, Respondent did not 

document Vickery’s attempt to purchase 

additional controlled substances from 

him. See id. at 27. Instead, he wrote that 

Vickery was ‘‘having more problems 

[with] anxiety.’’ Id. 

Officer Vickery returned for a fourth 

visit to Liberty Wellness Center on 

December 1, 2011. GX 31; GX 27, at 32– 

37; RX G, Disc N–54. Vickery testified 

that he was intentionally one week late 

for his appointment so that ‘‘I would 

have been out of my medication for over 

seven days.’’ Tr. 194. Before meeting 

Respondent, Officer Vickery was 

required to produce a urine sample and 

complete another Patient Comfort 

Assessment form. Tr. 191; GX 27. 

On the form, Vickery noted that he 

had back pain which was aching, 

exhausting, and tiring, but was only 

occasional. GX 27, at 34. Rating his 

worst, least, and average pain level in 

the last month with medication, Vickery 

circled 0, indicating no pain, for all 

three levels. Id. However, he then 

claimed that his pain was a ‘‘3’’ ‘‘right 

now.’’ Id. While he also wrote that 

‘‘meds’’ made his pain better, he then 

indicated that each of the three drugs 

(Opana 40, Percocet 10/325, and Xanax 

1mg) provided ‘‘0’’ relief. Id. at 34–35. 

Upon meeting, Vickery told 

Respondent that the Opana was ‘‘doing 

good’’ and was ‘‘unbelievable,’’ but that 

he had been ‘‘talking to some people’’ 

who said he could get ‘‘25 milligram 

caplets’’ instead of the oxy 30 pills. Id. 

at 3–4. Respondent asked Vickery where 

he would get ‘‘those filled’’; Vickery 

replied that someone told him he could 

go to a pharmacy (Stacy’s) that did 

compounding. Id. at 4. After Vickery 

said that he had heard in the lobby ‘‘that 

the pills are getting scarce,’’ Respondent 

replied: ‘‘yeah, yeah, yeah.’’ Id. 

Respondent then advised Vickery that 

he may want to check with the 

pharmacy ‘‘to see if there’s any available 

because sometimes they have it and 

sometime they don’t.’’ Id. 

After some small talk about 

Thanksgiving, Respondent asked 

Vickery to rate his pain on the one to 

ten scale; Vickery replied that is was 

‘‘[a]round 3,4’’ but that ‘‘it comes and 

goes.’’ Id. at 5. Respondent then asked 

Vickery to rate his pain when he was 

‘‘on the medicine’’; Vickery replied that 

it was ‘‘down around almost nothing 

really on the medicine.’’ Id. 

Respondent then got up and asked 

Vickery to let him ‘‘press on [his] back 

a little bit’’; Vickery agreed. Respondent 

asked Vickery to lean forward, pressed 

on Vickery’s back and asked, ‘‘[d]oes 

that bother you?’’ Id. While Vickery’s 

answer is unintelligible, Respondent 

then asked, ‘‘[b]ut not a lot of pain?’’ Id. 

at 5–6. Vickery replied: ‘‘I guess today 

I’m having kind of a good day . . . but 

then again, I didn’t work today.’’ Id. at 

6. 

Respondent said ‘‘[t]hat a good thing’’ 

and added that ‘‘I don’t even think you 

need those 25’s,’’ a point which he then 

reiterated. Id. Vickery stated that ‘‘I 

really do, Doc. I need the 25’s, 

especially since I been taking all that 

other stuff. I been taking the Opanas, 

and I had Percocets.’’ Id. 

Respondent then observed that 

Vickery was ‘‘a week late’’ and was 

‘‘still not having much pain.’’ Id. 

Vickery replied, ‘‘Okay, well, I’m having 

a lot of pain Doc,’’ to which Respondent 

said ‘‘no’’ and started laughing. Id. 

Vickery insisted that he was ‘‘in a lot of 

pain’’ and that ‘‘Doc [your] kill [sic] 

me.’’ Id. After Respondent replied, ‘‘no, 

no,’’ Vickery asked him for ‘‘something 

to hold me’’ because ‘‘it’s going to be a 

mess’’ when he resumed working. Id. 

At this point, Respondent, for the first 

and only time during Vickery’s four 

visits, discussed his urine test results, 

noting that ‘‘you’re doing good. I mean, 

your urine doesn’t show any medicine 

in your system. You’re not having much 

pain. I mean, you’re actually doing 

pretty good.’’ Id. After Vickery said 

‘‘okay,’’ Respondent added: ‘‘I’m not 

sure if you need much of anything.’’ Id. 

Vickery then asserted that he needed ‘‘at 

least my oxy’s . . . and my Xanax,’’ 

prompting laughter from Respondent, 

who after an unintelligible comment by 

Vickery, asked: ‘‘What, the anxiety’s 

bothering you a bit.’’ Id. at 6–7. Vickery 

asserted that he knew ‘‘I’ll have to have 

it because . . . it may not be going on 

right now, but . . . it will.’’ Id. at 7. 

Respondent then told Vickery that ‘‘you 

may not need anything but the Xanax 

and the Naproxen. Id. 

After Vickery explained that he didn’t 

take the Naproxen and did not ‘‘even 

like it,’’ Respondent again asked Vickery 

‘‘so how much pain are you having 

today?’’ Id. Vickery said, ‘‘well, I guess 

now I’m having . . . up in the five, six, 

seven,’’ and Respondent observed, 

‘‘That’s not what you told me when you 

came in.’’ Id. Vickery then stated, ‘‘I’ll 

say around four, okay’’; Respondent 

said: ‘‘But that’s not what you told me.’’ 

Id. After Vickery stated that ‘‘I said three 

or four,’’ Respondent acknowledged that 

he ‘‘did write down three.’’ Id. However, 

Respondent then stated that ‘‘when I 

pressed, you’re not having much 

tender[ness],’’ noted that there was ‘‘no 

medicine in [Vickery’s] system,’’ and 

added ‘‘you don’t need much of 

anything.’’ Id. Vickery asserted that he 

was ‘‘going to have to have something,’’ 


tkelley on DSK3SPTVN1PROD with NOTICES
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10Having compared the transcript with the video 

recording, I conclude that Respondent actually said: 

‘‘when you’re not taking any, your pain level is only 

at a 3.’’ RX G Disc N–54. 

and that he would find a different 

doctor ‘‘to go to next month,’’ prompting 

more laughter from Respondent. Id. at 

7–8. 

Vickery then explained that the 

Opanas ‘‘were good’’ but expensive; 

Respondent reiterated that there was no 

medicine in his urine. Id. at 8. Vickery 

stated that he didn’t know why, 

suggested that ‘‘maybe the urine screen 

is wrong,’’ and added that he had taken 

‘‘one a couple days ago.’’ Id. Respondent 

subsequently asked Vickery how much 

pain he felt when his back was pressed 

on; Vickery did not answer directly, 

stating that he ‘‘hadn’t done anything 

today’’ and that he worked ‘‘for the last 

couple of days’’ and hadn’t done 

anything ‘‘to aggravate’’ it, but that he 

was going back to work the next day and 

that if his ‘‘appointment had been 

tomorrow . . . it would probably be[] a 

whole different story.’’ Id. at 8–9. 

Respondent said ‘‘okay,’’ and added: 

‘‘I think you can probably get away with 

using maybe either some Percocet or 

some oxy 15’s.’’ Id. at 9. Vickery then 

said that he would ‘‘really like to get 

some of the 25’s, noting that there was 

‘‘not that much difference’’ between the 

15’s and the 25’s. Id. Respondent 

agreed, Vickery asked ‘‘why can’t we do 

the 25’s, and I can get the caplets,’’ 

Respondent said ‘‘okay,’’ and Vickery 

asked for ‘‘some Percocets in between.’’ 

Id. 

Respondent then asked Vickery if he 

would check the pharmacy ‘‘and see if 

they have any 25’s?’’ Id. Vickery replied 

that he did not ‘‘have a number for 

them,’’ and added that he was ‘‘sure 

they can make them’’ and ‘‘can get the 

stuff.’’ Id. Vickery added that ‘‘they can 

fill my . . . Xanax to hold me till they 

can make . . . the other stuff.’’ Id. He 

then complained that Respondent was 

‘‘getting hard to work with.’’ Id. 

Respondent replied, ‘‘No. I’m easy, 

but . . . I don’t need you taking 

anything if you’re not having any 

problem because that’s not good for you. 

And that’s where the problem is.’’ Id. at 

10. Respondent then observed that 

Vickery had almost no pain when he 

was on medication and that his pain 

level was only a three when he was not 

taking medication.10 Id. Vickery then 

insisted that his ‘‘3 may be somebody 

else’s 7, 8,’’ to which Respondent 

replied ‘‘that’s a good thing’’ and ‘‘that 

means you don’t need as much 

medicine,’’ and laughed. Id. Vickery 

then said: ‘‘yes I do, yes I do, Doc. Yes, 

I do.’’ Id. 

Respondent reiterated that it was ‘‘a 

good thing’’ that Vickery did not ‘‘feel 

as much pain as someone else’’ and did 

not ‘‘need as much medicine’’ as other 

persons. Id. Vickery then stated: ‘‘I like 

what I take, Doc, so—I been—used to 

taking it[,] kind of where I’m at.’’ Id. 

Respondent replied that if ‘‘you’re used 

to taking it, then we’re talking about 

somewhat of a dependency here, okay,’’ 

and laughed. After an unintelligible 

remark from Vickery, Respondent stated 

that he was going to ‘‘try and wean’’ 

Vickery ‘‘down some,’’ because he did 

not ‘‘need as much as . . . what you’ve 

been taking.’’ Id. 

When Vickery asked what this 

involved, Respondent explained that: ‘‘I 

can’t just cold turkey you, either, 

because then you have some withdrawal 

problems. But you haven’t taken it in 

seven days, so I doubt you would have 

that.’’ Id. at 11. Respondent then 

laughed, and added, ‘‘[t]here none in 

your system,’’ and again laughed. Id. 

Vickery complained that Respondent 

was being stingy; Respondent replied 

that he was ‘‘trying to keep [him] out of 

trouble,’’ noting that ‘‘everything 

suggests to me that you don’t need as 

much as you had before.’’ Id. 

Vickery then asked ‘‘how many 25’s’’ 

he could get’’; Respondent stated that he 

‘‘was on 90’’ and if he ‘‘got the 25 a 

couple of times a day,’’ that would keep 

Vickery ‘‘out of trouble.’’ Id. When 

Vickery then sought some Percocets for 

‘‘in between,’’ Respondent said ‘‘no’’ 

and that ‘‘[y]ou’re not hurting in 

between.’’ Id. Vickery replied, ‘‘Okay, 

my pain is higher now. Now since I sat 

here and talked to you, my pain is 

higher.’’ Id. Respondent laughed, and 

Vickery stated: ‘‘You really got to be a 

pain in my back Doc. Now, I’m getting 

higher.’’ Id. 

Respondent laughed, and said that he 

would prescribe the 25’s ‘‘maybe twice 

a day and see how that works for you.’’ 

Id. Vickery then sought more drugs for 

‘‘in between’’ and asked if he could get 

Lortab. Id. at 12. While Respondent 

initially agreed to prescribe ‘‘maybe one 

Lortab a day,’’ Vickery then complained 

that he was only getting 60 oxycodone 

25’s, and asked if he could get 90. Id. 

Respondent then asked if Vickery 

‘‘was on 90 of the Opanas,’’ and after 

Vickery confirmed this, Respondent 

agreed to prescribe 90 oxycodone 25s 

but not the Lortabs. Id. Vickery said 

‘‘that’s fine’’ and asked ‘‘What about 

Somas in between? What would those 

do?’’ Id. Respondent said that it was ‘‘a 

muscle relaxer’’ and agreed to prescribe 

the drug, telling Vickery that he could 

take them at bedtime and not at work. 

Id. Vickery said ‘‘okay,’’ and 

Respondent said that he ‘‘did feel some 

tight muscles back there,’’ to which 

Vickery replied, ‘‘[s]ee, they’ve gotten 

tighter since I’m talking to you.’’ Id. 

Respondent laughed. Id. at 12–13. 

Vickery then said he would have to 

ask Del Percio for the pharmacy’s phone 

number; Respondent said there were 

other places that made compounds. Id. 

at 13. Respondent then reiterated his 

statement that Vickery was ‘‘doing 

better’’ and that ‘‘the medicine is 

working for you,’’ adding that ‘‘you 

probably don’t need as much as what 

you’re taking’’ as he had not had 

medication for a whole week and was 

not ‘‘bending over in pain or anything.’’ 

Id. at 13–14. Respondent then gave 

Vickery the prescriptions, after which 

Vickery said: ‘‘I’ll be in more pain next 

time.’’ Id. at 14. Respondent replied: 

‘‘No, no, no, no no,’’ and Vickery said: 

‘‘I know what you’re saying. I’m just 

messing with you.’’ Id. Following an 

exchange of pleasantries, Vickery left 

Respondent’s office. Id. 

Vickery then saw Del Percio and 

asked him about the name of the 

pharmacy that did the caplets (oxy 25). 

Id. at 15. Del Percio told Vickery that he 

could not ‘‘get those today’’ and asked 

‘‘why’d he give you those.’’ Id. Vickery 

explained that he could not afford the 

Opana and that he had been told ‘‘that 

there were no pills around.’’ Id. Del 

Percio told Vickery that Stacy’s 

Pharmacy did not have any caplets 

available today and that Vickery was to 

call him the next morning and that he 

(Del Percio) would then call the 

pharmacy to check on whether the 

caplets would be available. Id. Vickery 

agreed to ‘‘do that,’’ and Del Percio 

explained, ‘‘that’s how it works over 

there.’’ Id. Vickery then left Liberty. Id. 

Consistent with the recording and the 

transcript, Respondent provided 

Vickery with prescriptions for three 

drugs. GX 27, at 33. The prescriptions 

were for 90 oxycodone 25mg, 30 Xanax 

1mg, and 30 Soma (carisoprodol). Id. 

As the ALJ found, this visit ‘‘can only 

be described as a negotiation over the 

quantity of narcotics Respondent would 

prescribe for Officer Vickery.’’ R.D. at 

44. Officer Vickery summarized this 

office visit in these terms: ‘‘It appeared 

to me, because it was almost like it was 

starting out, he didn’t want to give me 

anything. And then the further we went 

along and the more I kept changing my 

story here and there, he just decided, 

well, okay, we’ll just go with it.’’ Tr. 

196. 

The Visits of TFO Lawson 

In his role as C.F., TFO Lawson made 

two office visits to Liberty, the first on 


tkelley on DSK3SPTVN1PROD with NOTICES
3638 Federal Register / Vol. 80, No. 15 / Friday, January 23, 2015 / Notices 

11Lawson’s undercover patient file included an 

MRI report which is dated July 22, 2011 and which 

lists the referring physician as ‘‘LIBERTY.’’ GX 22, 

at 3. The report notes ‘‘no significant disc disease 

at L1–L2, L2–L3, and L3–4. Id. At L4–L5, the report 

notes that ‘‘[t]here is broad based low grade disc 

bulging abutting the ventral thecal sac without 

significant mass effect or nerve root impingement,’’ 

and at L5–S1, it notes that ‘‘[t]here is posterior low 

grade disc bulging without significant mass effect 

identified.’’ Id. The report further notes that ‘‘[t]here 

is no extruded disc herniation identified at any 

level’’ and that ‘‘[t]here is no central canal or neural 

foraminal canal stenosis see.’’ Id. 

12 In the progress note, Respondent noted that 

each straight leg lift was ‘‘unremarkable.’’ GX 22, 

at 1. He also wrote that he found moderate 

tenderness in the paravertebral muscles and muscle 

August 2, 2011, the second on 

September 2, 2011. Tr. 78; GX 40 at 3. 

He stated that his objective was to 

investigate ‘‘the general activity of the 

clinic’’ and ‘‘to obtain prescriptions for 

controlled substances for no legitimate 

purpose.’’ Tr. 81; GX 40, at 3. To do this, 

he ‘‘was to make as minimal complaint 

as possible, provide as few indications 

of pain as [he] reasonably could, and to 

try to show that [he] was involved in 

diversion.’’ Tr. 81. 

TFO Lawson testified that Del Percio 

conducted the initial intake on August 

2, 2011. On intake, Del Percio asked 

Lawson if he had an appointment 

(Lawson saying ‘‘yeah’’), where his MRI 

was (with Lawson saying that ‘‘it should 

have been faxed to you’’ and ‘‘when I 

called I thought you had it’’), and if all 

he was then taking was Endocet. GX 23, 

at 1. Lawson replied that this was the 

drug he got at an urgent care center he 

went to and that his pain clinic (which 

he later identified as Atlanta Medical 

Group in Cartersville) had been ‘‘shut 

down.’’ Id. at 1–3. Del Percio then asked 

Lawson again about his MRI and if he 

had gotten it done at Greater Georgia 

Imaging, with Lawson answering 

‘‘yeah.’’ After searching through various 

documents for the MRI, Del Percio told 

Lawson that he would ‘‘have them fax 

over a copy’’ and not to ‘‘worry about 

it.’’ Id. at 2. See generally RX G, Disc N– 

13. 

Next, Del Percio asked Lawson for his 

last name and date of birth and had him 

sign and date a form, after which he 

gave him paperwork to complete and 

asked him to clip his ID to the forms 

when he was done. GX 23, at 2–3. 

Included in the forms was one which 

solicited general health information; on 

the form, Lawson listed his ‘‘chief 

complaint’’ as his back, wrote that the 

pain started ‘‘3 years ago,’’ and that it 

was the result of an ‘‘accident in 

military.’’ He also indicated that his 

pain was a 5 without medication and a 

2 with medication on a scale of 0 to 10, 

with ‘‘0 being no pain and 10 being the 

worst pain possible.’’ GX 22, at 5. 

Del Percio asked Lawson where he 

had previously gone and how he had 

heard about Liberty; Lawson replied 

that a buddy had told him and that 

‘‘everybody else was giving me the 

runaround because my place was shut 

down.’’ Id. at 3. Del Percio then gave 

Lawson an additional form to complete, 

again asked him to clip his ID to it when 

he was done, and told Lawson that he 

would need to provide a urine sample. 

After completing the interview, Del 

Percio collected $300 in cash from 

Officer Lawson and brought him into 

Respondent’s office, where after 

exchanging pleasantries, Respondent 

stated that Lawson’s x-rays 11 showed 

that he had ‘‘a little bulging disc’’ and 

asked if he had ‘‘any injuries at all to 

[his] back.’’ GX 23, at 4. Lawson said 

that ‘‘ten years ago,’’ while he was ‘‘in 

the military,’’ he was in a Humvee that 

‘‘went off the road.’’ Id. Respondent 

asked Lawson where he was now 

hurting; Lawson said, ‘‘about midback.’’ Id. 

Respondent then asked, ‘‘[d]oes the 

pain go anywhere?’’ Lawson said that it 

depended on what he was doing and 

that he hadn’t ‘‘been at work today.’’ Id. 

at 4–5. He then explained that on a 

normal day, ‘‘it’s usually all in the same 

place.’’ Id. at 5. However, Lawson 

denied having ‘‘any numbness or 

tingling in [his] legs.’’ Id. Respondent 

then asked Lawson to rate his usual 

pain level on a scale of one to ten; 

Lawson said ‘‘five.’’ Id. 

Next, Respondent asked if anyone had 

recommended that Lawson receive 

injections or surgery and if he had seen 

either an orthopedic surgeon or 

neurosurgeon. Id. Lawson answered 

‘‘no’’ to both questions. Id. Respondent 

also asked if this had been ‘‘looked at in 

the military,’’ Lawson said that ‘‘was so 

long ago,’’ and after he ‘‘got out,’’ he 

‘‘went to the VA,’’ but ‘‘they patch you 

up and send you on.’’ Id. Respondent 

then asked Lawson if he would want to 

undergo surgery; Lawson answered 

‘‘[n]ot necessarily.’’ Id. 

Respondent asked Lawson about his 

fluid consumption. Id. Lawson said that 

he usually drank three cans of Mountain 

Dew a day, a glass of tea at both lunch 

and dinner, four bottles of water, and 

alcohol on the weekends. Id. at 6–7. 

Next, Respondent asked Lawson what 

medicines he had taken that had helped. 

Id. at 7. Lawson stated that when he 

‘‘was going to Atlanta Medical Group,’’ 

he was taking oxycodone, Soma, and 

‘‘Xanax to help with the jitters.’’ Id. 

Lawson further stated that he was taking 

the thirty milligram oxycodone, ‘‘at 

most . . . 3 a day’’; that he thought he 

was supposed to take one Soma a day 

but that the clinic had ‘‘been shut down 

for two months’’; and that he took the 

Xanax two milligram tablets. Id. 

Respondent then noted that Lawson 

been ‘‘taking something in the past 

month’’; Lawson explained that he had 

gone ‘‘to an urgent care place’’ after his 

‘‘clinic got shut down,’’ where he got 

‘‘two weeks’’ of Percocet, which 

‘‘hardly’’ worked for him. Id. 

Respondent then asked if Lawson had 

ever been prescribed the oxycodone 

15’s; Lawson replied that it had ‘‘been 

so long when they did this,’’ but ‘‘at one 

point’’ they gave him ‘‘a few of the 15’s 

to try to cut down on taking the three 

30’s a day.’’ Id. Lawson then denied that 

the 15’s had been prescribed in the 

place of the 30’s, and when Respondent 

suggested that they had been given to 

him ‘‘for breakthrough,’’ he agreed. Id. 

at 8–9. 

Respondent then told Lawson that he 

was drinking a half gallon of caffeine a 

day, plus alcoholic beverages on the 

weekend, and that this was causing his 

body to lose water, and that ‘‘the less 

water you have in your system, the more 

pain you’re going to have.’’ Id. at 9. 

Continuing, Respondent stated that a 

muscle that is not ‘‘well hydrated goes 

into spasms’’ and causes pain. Id. He 

also told Lawson that his caffeine 

consumption was ‘‘going to mess up 

[his] kidneys’’ and that he was surprised 

that Lawson was ‘‘even sleeping at night 

drinking that much caffeine.’’ Id. 

Respondent then showed Lawson a 

model of the spine and explained that 

his discs lost ‘‘water throughout the 

day’’ and because he was drinking lots 

of caffeine, the discs were not filling 

back up with water at night while he 

was sleeping. Id. Respondent explained 

his ‘‘x-ray’’ showed he had a bulging 

disc, pointed to where the disc was on 

his spine model, and explained that he 

actually had two bulging discs, one 

‘‘between L4 and L5,’’ that was 

‘‘actually coming near or pressing on the 

spinal cord a little bit,’’ and one at ‘‘L5– 

S1, where it’s just back here bulging.’’ 

Id. at 9–10. Respondent then reiterated 

his earlier advice that Lawson needed to 

reduce his caffeine consumption to one 

can of Mountain Dew per day and to 

increase his water consumption to six 

bottles per day. Id. 

Respondent then asked Lawson to sit 

on the exam table and performed a 

physical examination. Id. The video 

shows that the exam consisted of 

Respondent testing Lawson’s left and 

right patellar reflexes with a hammer; 

having Lawson lie on his back and raise 

each leg and asking whether each 

movement hurt, with Lawson saying 

no 12; having Lawson turn over on his 


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spasms in both Lawson’s thoracic and lumbar 

regions. Id. 

13Regarding the physical examination, 

Respondent testified that the deep tendon reflex he 

observed in performing the patellar examination 

was normal and the leg lifts were unremarkable for 

both legs, suggesting that there was no nerve 

impingement in the area of Lawson’s lumbar spine. 

Tr. 321. According to Respondent, the MRI 

presented by Officer Lawson ‘‘was abnormal,’’ and 

there was ‘‘moderate tenderness of [the] 

paravertebral muscles . . . with increased muscle 

tone.’’ Id. 

14At the hearing, Respondent contended that 

various portions of the transcripts were inconsistent 

with the recordings. See Tr. 314–16. The ALJ 

carefully reviewed the recordings in light of 

Respondent’s testimony and found that the 

transcripts were ‘‘substantially accurate reports of 

what the parties said during these visits.’’ R.D. at 

8–9. The staff of this Office has also watched the 

videos and agrees with the ALJ’s conclusion that 

the transcriptions are substantially accurate and 

notes that any errors are not material. 

stomach and asking him whether this 

movement ‘‘bother[ed]’’ him, with 

Lawson saying ‘‘um, a bit’’; followed by 

Respondent palpating Lawson in several 

areas and asking ‘‘[r]ight in here,’’ with 

Lawson answering ‘‘[r]ight in there’’; 

upon which Respondent concluded that 

Lawson had muscle spasms which he 

asserted were caused by Lawson’s 

caffeine consumption. See generally RX 

G, Disc N–13; see also GX 23, at 10– 

11.13

Respondent then told Lawson that he 

needed to do back exercises (although 

Liberty was out of back-stretching 

sheets) and asked if he had ever taken 

anti-inflammatories such as Naproxen 

or Motrin. Id. at 11. Lawson replied that 

he had gotten Naproxen ‘‘along with the 

other medicines.’’ Id. Respondent then 

asked Lawson if he had ever taken 

Flexeril; Lawson replied that he 

believed he did. Id. Respondent told 

Lawson that it was a muscle relaxer and 

asked how it worked for him; Lawson 

replied that he ‘‘really couldn’t say.’’ Id. 

at 11–12. Respondent then asked 

Lawson if ‘‘the Soma work[ed] better for 

you; Lawson said ‘‘yeah.’’ Id. at 12. 

Respondent then asked whether the 

Percocet had helped him; Lawson 

replied that ‘‘it didn’t seem like it was 

doing anything . . . it just didn’t 

touch.’’ Id. Respondent then said he was 

going to try Lawson on ‘‘the oxycodone, 

the 15’s . . . maybe four times a day’’ 

and ‘‘we’ll see how well that works with 

you’’; Lawson said ‘‘all right.’’ Id. 

Respondent then stated that he thought 

that ‘‘a lot of the problems we’re seeing 

is just these tight muscles’’ and ‘‘you got 

some pain in the lower back, where you 

showed the disc problem, but I think a 

lot of it’s just the muscle spasm.’’ Id. 

Continuing, Respondent explained that 

‘‘then we’re talking about stretching the 

muscles, take the muscle relaxer, and 

then the anti-inflammatory, something 

for pain, then stretching those muscles. 

But if you . . . don’t decrease your 

caffeine, they’re going to stay tight. And 

they’re going to continue to bother your 

body.’’ Id. Respondent reiterated his 

earlier advice on fluid intake, provided 

Lawson with prescriptions for 120 

oxycodone 15mg and 30 Soma 350mg, 

(as well as Naproxen), told him he 

would see him in a month, and the visit 

ended. Id.; GX 22, at 2. 

On September 2, 2011, TFO Lawson 

returned to Liberty. GX 22, at 21; GX 24. 

Prior to seeing Respondent, Lawson 

completed a form entitled ‘‘Patient 

Comfort Assessment Guide,’’ on which 

he identified his pain as being in his 

‘‘lower back’’ and circled that it was 

‘‘aching,’’ ‘‘sharp’’ and ‘‘continuous.’’ 

GX 22, at 23. He also rated his ‘‘worst’’ 

pain in the last month as a ‘‘9,’’ his 

‘‘least’’ pain as a ‘‘6,’’ his ‘‘average’’ pain 

as a ‘‘7,’’ and his pain ‘‘right now’’ as 

an ‘‘8.’’ Id. He also noted that 

‘‘medication’’ made his pain better, but 

then indicated that oxycodone 15 

provided ‘‘No Relief.’’ Id. at 23–24. 

Lawson’s visit with Respondent lasted 

under six minutes, with the physical 

exam lasting approximately fifteen 

seconds. See generally RXG, Disc N–34. 

Upon meeting, Respondent and 

Lawson exchanged pleasantries, and 

Respondent asked Lawson how the 

medicine was working for him. GX 24, 

at 1–2. Lawson replied: ‘‘Well, the clinic 

I was going to before—I was taking 30 

milligram and the 15’s aren’t as affective 

[sic] as the 30’s were.’’ Id. at 2. 

Respondent then asked Lawson to rate 

his pain on a one to ten scale; Lawson 

replied: ‘‘it has gotten worse than last 

time. It was—it’s about an eight or a 

nine.’’ Id. Respondent said ‘‘okay’’ and 

asked: ‘‘and with the 30’s you were— 

where were you running?’’ Id. Lawson 

then stated that ‘‘on the medicine,’’ he 

was ‘‘[u]nder five.’’ Id. 

Respondent replied: ‘‘Okay. So we 

need you under five,’’ and asked if 

Lawson was ‘‘taking the antiinflammatories?’’ Id. Lawson asked ‘‘is 

that what the Naproxen is,’’ and after 

Respondent confirmed this, Lawson 

said: ‘‘Yeah. You gave me that.’’ Id. 

Respondent then asked, ‘‘[w]hat about 

those Mountain Dews?’’; Lawson 

answered that it was ‘‘harder to give up’’ 

caffeine than smoking, but added that 

he had been ‘‘drinking more water 

though.’’ Id. After Lawson promised to 

do better, Respondent asked how many 

Mountain Dews he was drinking a day; 

Lawson answered: ‘‘maybe three. Is that 

still too much?’’ Id. at 3. Respondent 

said it was ‘‘too much’’ and that if 

Lawson would ‘‘give up the Mountain 

Dews, [he] probably wouldn’t have that 

much pain now’’ and that he needed 

him ‘‘on like one Mountain Dew a day.’’ 

Id. 

Respondent then asked Lawson if he 

was ‘‘taking the 30’s three times a day 

before?’’; Lawson answered ‘‘correct.’’ 

Id. Respondent then asked Lawson to 

lean forward in his chair, palpated his 

back, and noted that ‘‘you’ve got all 

these muscles spasms here’’ and ‘‘[w]ith 

that caffeine they’re not going 

anywhere.’’ Id. at 3–4. Respondent and 

Lawson engaged in further discussion of 

the latter’s caffeine consumption, 

followed by a discussion of Lawson’s 

fortuitousness in arriving at the clinic 

before it closed for the weekend. Id. at 

4–5. 

Respondent provided Lawson with 

prescriptions for 90 oxycodone 30mg, 

30 Soma 350mg, and Naproxen. Id. at 5; 

GX 22, at 22. The visit then ended. GX 

24, at 5.14

Regarding the visits, TFO Lawson 

testified that at no time did Respondent 

ask why he traveled from Thomaston to 

Norcross, a distance of 84 miles (GX 40, 

at 3), in order to receive treatment. Tr. 

91–92. He also testified that Respondent 

never asked the names of his prior 

treating physicians, and although he did 

require Lawson to produce a urine 

sample, he never discussed the results 

of the sample, even though Lawson 

testified that to his knowledge he had 

no drugs in his system at the time this 

sample was taken. Id. at 92. TFO 

Lawson added that at the start of the 

initial office visit at Liberty, he told Del 

Percio that he was currently taking 

Endocet, a drug combining oxycodone 

and acetaminophen. Id. at 93. While 

Lawson told Respondent he had also 

been treated at a Veterans 

Administration hospital and at a clinic 

in Cartersville, to the best of his 

knowledge Respondent never attempted 

to confirm any of these statements. Id. 

at 94–96. 

Respondent testified that when TFO 

Lawson reported his medical history, 

the latter told him that he was using an 

existing prescription for oxycodone 30 

mg, which Respondent noted on the 

progress note. Tr. 323; GX 22, at 1. 

However, the recording and the 

transcript establish that Lawson said 

that the pain clinic he had previously 

gone to had been shut down two months 

earlier and that he had since gone to an 

urgent care center from which he 

received only Percocet. GX 23, at 1, 8; 

RX G, Disc N–13. 

Respondent further testified that he 

would normally take steps to confirm a 

prior prescription, but acknowledged 

that he did not do so in this case and 

offered no explanation for failing to do 

so. Tr. 325. While Respondent also 


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15 Dr. Hurd specifically identified that he had 

reviewed the provisions defining ‘‘unprofessional 

conduct’’ to include ‘‘failing to maintain 

appropriate patient records whenever’’ controlled 

substances are prescribed, ‘‘failing to use such 

means as history, physical examination, laboratory, 

or radiographic studies, when applicable, to 

diagnose a medical problem,’’ and ‘‘failing to use 

medication and other modalities based on generally 

accepted and approved indications, with proper 

precautions to avoid adverse physical reactions, 

habituation, or addiction.’’ Tr. 438–39 (discussing 

Ga. Comp. R. & Regs. R. 3603.02(5), (14), & (15)). 

testified that the clinic Lawson 

identified as his prior treating source 

had closed, and then asserted that this 

was why he would not be able to obtain 

records from it, he gave no explanation 

for why he could not obtain the same 

information by contacting Lawson’s 

pharmacy. Id. at 325–326. Nor did he 

explain why he did not contact the 

urgent care clinic which Lawson 

claimed he had recently gone to. Id. 

The Visit of TFO Manning 

On or about October 24, 2011, a fourth 

TFO also went to Liberty in an attempt 

to see Respondent. According to the 

video recording, the TFO did not have 

an MRI report and instead provided Del 

Percio with a letter from a doctor. See 

RX G, Disc N–51. On reviewing the 

letter, Del Percio observed that ‘‘if you 

read his comments there’s nothing on 

there. This is like his examination. 

Where is the MRI report? . . . if you 

read his comments, there’s nothing 

there. This is his review’’ [and it says 

there] is ‘‘no evidence of lumbar disk 

herniation, no nothing, MRI was 

unremarkable.’’ Id. Del Percio then 

reiterated that he needed an MRI report 

and not the films because the doctor’s 

letter did not show him anything and 

told the TFO to have the report faxed. 

Id. 

A short while later, the TFO placed a 

phone call to Del Percio, in which he 

stated that he was going to New York 

the next day and that he hoped to get 

his prescription filled. Id. Del Percio 

explained that he could not use the 

letter the TFO had provided and that 

‘‘the doctor would laugh at me if I tried 

to hand that’’ to him. Id. The TFO then 

told the Del Percio if he could get in to 

see Respondent, he would ‘‘get another 

one while’’ he was in New York and 

that he would ‘‘take care of’’ Del Percio. 

Id. Del Percio replied that ‘‘[i]t’s not 

about that man, we cannot do that. We 

cannot risk anything like that . . . the 

Dr. is not going to risk his license. He’s 

just not going to [ ] He can’t see a 

patient without one.’’ Id. After the TFO 

again promised that he would ‘‘take 

care’’ of Del Percio, the latter stated that 

‘‘he couldn’t do it’’ and ‘‘that he had to 

have something to show because 

otherwise any person could walk in off 

the street and say Oh hey, I got pain.’’ 

Id. The TFO then stated that there were 

a lot places that do that, to which Del 

Percio replied that they were shut 

down. Id. 

Regarding TFO Manning’s attempt to 

see him, Respondent testified that 

‘‘there’s only one agent that really came 

into the office for no legitimate medical 

reason’’ for a prescription. Tr. 292–93. 

Continuing, Respondent testified that 

‘‘[i]f you come in and you complain of 

pain, you have a positive MRI, you have 

findings on your exam, it suggests that 

your pain is real and your MRI is real. 

Whether you are a good actor or a bad 

actor, that suggestion is still there.’’ Id. 

at 293–94. 

The Expert Testimony 

Both the Government and Respondent 

elicited testimony from an expert 

witness, the Government calling 

Thomas E. Hurd, M.D., and Respondent 

calling Carol Anastasia Warfield, M.D. 

GX 37; RX F2. Dr. Hurd holds a doctor 

of medicine degree from Northwestern 

University Medical School, held a 

fellowship in critical care medicine at 

the Department of Anesthesia, 

University of Florida, and is a diplomate 

of the American Board of 

Anesthesiology, the American Board of 

Pain Medicine, and the American Board 

of Interventional Pain Physicians. GX 

37, at 1; Tr. 434. He further testified that 

in 2005, he did a Fellowship in 

Interventional Pain Practice and is 

certified by the World Institute of Pain. 

Tr. 434. 

Dr. Hurd is licensed in four States, 

including Georgia, and has been 

president of Pain Solutions Treatment 

Centers, a multi-clinic interventional 

pain practice located in Georgia. GX 37, 

at 1–2. He has testified as an expert in 

pain management and chronic regional 

pain syndrome in other proceedings. Tr. 

440. Dr. Hurd further testified that he 

currently practices only interventional 

pain medicine and that fifty to seventy 

percent of his practice involves treating 

chronic pain patients. Id. at 449. 

Dr. Warfield holds a Doctor of 

Medicine degree from Tufts University 

Medical School, did a fellowship in 

anesthesia, and is a diplomate of the 

American Board of Anesthesiology and 

a Fellow of the American Board of Pain 

Medicine. RX F2, at 1. Between 1980 

and 1986, she was an Instructor in 

Anesthesia at Harvard Medical School, 

after which she became a Professor of 

Anesthesia at Harvard Medical School. 

Id. at 2. Between 1980 and 2000, she 

was the Director of the Pain 

Management Center, at Beth Israel 

Hospital in Boston, Mass., and between 

2000 and 2007, she was the Chairman, 

Department of Anesthesia, Critical Care 

and Pain Medicine. Id. She has also 

served on the editorial boards of various 

professional journals. Id. at 6. 

Dr. Hurd testified that he had 

reviewed the Georgia statutes governing 

controlled substance prescriptions, the 

Georgia Board of Medical Examiners’ 

regulation defining unprofessional 

conduct,15 the Board’s guidelines for 

using controlled substances to treat 

pain, and the Board’s 

‘‘recommendations and guidelines’’ for 

identifying pill mills and drug-seeking 

patients. Tr. 435–36. Dr. Hurd testified 

that at the initial visit, the patient’s 

history must be obtained from both the 

patient orally and by obtaining 

documentation from other sources who 

treated the patient, after which a 

physical exam is performed based on 

the history to arrive at a preliminary 

diagnosis and a treatment plan is then 

begun. Id. at 441. While Dr. Hurd 

acknowledged the role of opioids in 

giving pain relief, he further explained 

that it ‘‘is incumbent upon the 

physician to go ahead and engage in 

other more conservative measures and 

make sure those have been taken out, 

such as physical therapy, maybe 

injection therapy, [and] different kinds 

of medication modalities.’’ Id. at 442. 

Asked to describe what information 

he needed to establish a diagnosis of 

chronic pain, Dr. Hurd stated that he 

would first perform a physical 

examination. Id. at 450. Second, he 

would want to see if the patient had any 

records from other physicians because 

he did not ‘‘want to repeat failed 

treatments,’’ and if the patient claimed 

he was on opioids, he would ‘‘want to 

know that another physician has treated 

them already’’ so that he would not be 

‘‘giving the patient a medicine that 

they’re not taking.’’ Id. at 450–51. Later, 

Dr. Hurd explained that ‘‘if a patient is 

telling you that they took a bunch of 

medications for legitimate reasons, 

you’d like to see [that physician’s] 

reasoning, because otherwise, you’re 

basing your entire treatment plan [on] 

the patient’ statement, and . . . not 

everybody always tells the truth.’’ Id. at 

468–69. 

Dr. Hurd then added that ‘‘almost 

every patient within the first two visits 

is going to have an MRI.’’ Id. at 451. Dr. 

Hurd explained, however, that half of 

the patients whose MRIs show an 

abnormality do not ‘‘have any pain.’’ Id. 

Dr. Hurd then testified that an MRI 

alone ‘‘is not sufficient’’ to form a 

diagnosis of chronic pain and the MRI’s 

findings must be correlated to the 


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16 Dr. Hurd also testified regarding the Georgia’s 

Board January 2011 Newsletter (GX 39), which 

contained a two page discussion of the 

characteristics of ‘‘pill mills,’’ or illegitimate pain 

management practices, as well as various ‘‘red 

flags’’ associated with drug-seeking patients. Tr. 

463–69. Of relevance here, the Newsletter identified 

the following red-flags: ‘‘[t]he patient is from 

another state,’’ ‘‘[t]he patient requests a specific 

drug,’’ ‘‘[t]he patient states that an alternative drug 

does not work,’’ ‘‘[t]he patient states that their[sic] 

previous physician closed their practice,’’ ‘‘[p]rior 

treatment records cannot be obtained,’’ ‘‘[t]he 

patient presents to an appointment with an MRI,’’ 

‘‘[t]he patient(s) carpool,’’ ‘‘[t]he patient’s pain level 

remains the same,’’ ‘‘[t]he patient is non-compliant 

with the physician’s treatment plan.’’ GX 39, at 7. 

The Newsletter also made a variety of suggestions 

to prescribers, including that they ‘‘[r]equire 

patients to submit treatment records from previous 

providers,’’ and verify the authenticity of MRIs and 

prior treatment records. Id. 

patient’s pain complaint ‘‘by doing a 

physical exam . . . that’s usually a 

neurological physical exam,’’ and that 

during the exam, the patient’s motor 

function, sensory function and reflexes 

are checked. Tr. 452; see also id. at 484– 

86 (discussing use of sensory testing to 

correlate MRI findings with patient’s 

pain complaint and how different nerve 

roots correspond to various areas of the 

body). Dr. Hurd also discussed the 

importance of testing the strength of a 

patient’s muscles. Id. at 484. 

Dr. Hurd testified that ‘‘[t]here are 

several classes of pain medication,’’ 

which vary from lower-risk drugs which 

include anti-inflammatories, antidepressants, and ‘‘nerve medications,’’ 

to higher-risk drugs including opioids 

and benzodiazepines. Id. at 453–54. He 

also testified that ‘‘[t]here are many’’ 

non-drug therapies for chronic pain, 

including physical therapy, aqua 

therapy, stretching or exercise programs, 

trigger point injections, and spinal 

injections. Id. at 455. When then asked 

by the Government whether, aside from 

an emergency or acute situation, there 

was any situation in which he would 

prescribe opioids at a patient’s first visit 

without having obtained the patient’s 

records from his previous treating 

physician, Dr. Hurd testified that if he 

judge[d] their pain to be severe enough that 

I would think they needed some help, if I 

could find on physical exam, their history 

that they were clearly weak or impaired, I 

would consider using that as a modality. 

However, I would also consider using other 

drugs as a modality as well. Now—and the 

ones I just talked about: anti-inflammatory 

medications, antidepressant medications, et 

cetera. 

. . . I’ll give you an example. Suppose 

somebody just had an acute fall. They saw 

me two weeks later. They were not getting 

better. Then I might consider a low dose of 

opioid therapy, in addition to the other 

things I’ve already mentioned. 

Id. at 456. Later, Dr. Hurd testified that 

where he had determined that it was 

appropriate to treat a patient with 

opioids, he would not normally start a 

patient on oxycodone 30mg. Id. at 558. 

Rather, he would usually start a patient 

on a combination of oxycodone and 

Tylenol (acetaminophen), such as 

Percocet 5/325 or 7.5/325. Id. 

Dr. Hurd then explained that he 

would ‘‘absolutely try[ ] to seek prior 

treatment records of any other physician 

that’s treated this patient’’ and that 

while ‘‘I don’t want to say that a 

physician doesn’t have latitude to ever 

use a narcotic . . . it would be a lower 

dose narcotic, if you thought that . . . 

there was some reason that the patient 

couldn’t take or tolerate a different 

medication,’’ such as an antiinflammatory because of ‘‘kidney 

problems.’’ Id. at 457. 

As for how he would address the 

situation where a patient’s prior practice 

had closed and the patient’s records 

were not available, Dr. Hurd testified 

that he would determine where the 

patient filled their prescriptions and 

obtain a pharmacy record. Id. at 458. Dr. 

Hurd noted, however, that under 

Georgia law, ‘‘[e]very legitimate practice 

is required . . . to maintain records,’’ 

and every physician who retires from 

practice is required to notify their 

patients and must keep patient records 

so that they can be retrieved. Id. at 458– 

59. 

Next, Dr. Hurd testified as to the use 

of urine drug screens in monitoring pain 

patients. Dr. Hurd explained that the 

tests serve two purposes: (1) 

Determining if the patient has been 

taking the drugs that were prescribed to 

him, and (2) determining if the patient 

is taking illegal drugs. Id. at 459–60. He 

further testified that the use of these 

tests is ‘‘imperative’’ at a patient’s first 

visit if a patient has already been on 

opioids or is asking for them, id. at 461; 

he also explained that if a patient tests 

negative for a prescribed medication, 

‘‘then that means they didn’t take the 

medicine’’ and ‘‘that usually means 

[they] don’t need it.’’ Id. at 462.16

Regarding the large number of out-ofstate patients who obtained drugs from 

Respondent, Dr. Hurd testified that this 

‘‘just seems unusual and unwarranted.’’ 

Id. at 513. While not denying that 

patients might travel out of state to see 

a specialist, Dr. Hurd observed that: 

[t]here is nothing about the ultimate 

prescription . . . of 30 milligrams of 

oxycodone several times a day, repeated over 

and over again, in case after case that is 

anything unique, except perhaps in the 

willingness of the physician to prescribe it. 

So . . . there’s no reason for somebody to 

pass 120 pain doctors on the road from 

Tennessee to Georgia to select the one who 

will write that medicine, except for a nonlegitimate purpose. 

Id. 

Dr. Hurd also testified that in his 

chart review, he noted that ‘‘over and 

over again,’’ the patients were given an 

order from Liberty for an MRI ‘‘without 

a previous exam.’’ Id. at 514. Dr. Hurd 

explained that ‘‘[t]here is no reason to 

order an MRI . . . in the absence of an 

emergency, without examining a 

patient.’’ Id. While Dr. Hurd 

acknowledged that he ‘‘get[s] patients 

all the time with MRIs . . . they’ve been 

ordered by a referring physician.’’ Id. at 

514–15. 

Dr. Warfield took issue with much of 

Dr. Hurd’s testimony. She testified that 

she had reviewed the reports of the 

investigation, the videos of the 

undercover visits, Dr. Hurd’s report, and 

a number of patient files. Id. at 570. She 

disputed Dr. Hurd’s testimony regarding 

the use of urine drug screens, explaining 

that ‘‘there are lots of pain centers that 

don’t use a lot of urine drug testing, 

because the people who want to obviate 

the urine drug test know how to do it. 

. . . So many folks feel that they’re not 

particularly useful.’’ Id. at 573. She also 

testified that while ‘‘Dr. Hurd was 

saying . . . that this is the way he does 

it . . . I’ve been on many . . . national 

boards across the country. This isn’t the 

way everybody does it, and by no means 

does everybody have to do it the way he 

does it.’’ Id. at 573–74. 

Dr. Warfield also took issue with Dr. 

Hurd’s testimony regarding the need to 

obtain a patient’s medical records. Tr. 

590–91. She testified: ‘‘[w]e don’t do 

that in our practice. I think it’s a rare 

medical practice that does that.’’ Id. at 

591. Dr. Warfield then testified that: 

[t]ypically . . . when you go to a physician, 

you walk in the door without any medical 

records. You see the physician. They ask you 

questions. You tell them about your medical 

history, and they take what you say as the 

truth. There has to be a certain amount of 

trust between the patient and the physician, 

so if the patient says to me, I had back 

surgery in 1995, and they removed my L5 

disc, I believe the patient. I don’t say . . . I’m 

going to need the medical records from that 

hospital where you say you had that surgery. 

Id. at 591. She then asserted that ‘‘[m]ost 

physicians do not ask for old medical 

records.’’ Id. at 591–92. 

The ALJ then asked Dr. Warfield what 

verification process she recommended 

her students use when a patient 

presents with no records, but has an 

MRI showing some degenerative disc 

disease or other disease impacting the 

spine, and tells the student that he has 

an existing prescription for oxycodone. 

Id. at 592. Dr. Warfield answered: ‘‘what 

we teach our residents is if a patient 


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17See also id. at 594 (asserting that if a patient 

with high blood pressure came to see her and said 

she was on a particular medication, she doesn’t ‘‘do 

verification . . . we make our own mind up as to 

whether that’s the appropriate drug . . . or should 

they be on a different drug or a different 

treatment’’). Id. 

18Asked by the ALJ what she would instruct her 

students to do if they were presented with an 

employment opportunity at a clinic which was ‘‘run 

on a cash-only basis; where patients drive long 

distances, often from other states; and where all the 

patient MRIs come from the same imaging facility,’’ 

Dr. Warfield testified that ‘‘taking each of those 

individually, I don’t think any of these things 

would make me tell my particular doctors to sway 

one or the other.’’ Tr. 610–11. She then explained 

that ‘‘none of those things are illegal per se,’’ and 

that there are ‘‘very outstanding, legitimate pain 

centers that take only cash’’ because they don’t 

want to deal with insurance companies. Id. at 611. 

As for patients travelling a long distance, she 

asserted that there are states where legitimate pain 

patients cannot get medication because ‘‘doctors are 

just unwilling to prescribe these drugs’’ and ‘‘don’t 

care what the patient has,’’ ‘‘[s]o there is some 

legitimacy to patients coming from other states to 

states where they can get these drugs.’’ Id. at 611– 

12. As for the MRIs coming from the same place, 

Dr. Warfield testified that if ‘‘you’re in a small 

town, there may be one place where patients get 

their MRIs.’’ Id. at 613. 

When then asked what she would advise her 

students if all three of these issues were present, Dr. 

Warfield testified that ‘‘if you’re in a practice like 

that . . . you better make darn sure that you’re 

treating your patients in an appropriate way, that 

you are . . . seeing your patients, treating them 

individually, doing histories, doing physical exams, 

doing, you know, an appropriate medical practice, 

is what I might tell them.’’ Tr. 614–15. 

19The initials of two of these individuals T.W. 

and J.B. correspond with those of Terrance 

Williams and Jessica Bernard, both of whom were 

eventually criminally charged and pled guilty to 

violations of 21 U.S.C. 846 and 841(b)(1)(C). See 

GXs 10 & 12. 

comes in, you do a history and you do 

a physical exam, and you make up your 

own mind as to what the diagnosis is 

and what the treatment is for that 

particular diagnosis.’’ Id. at 593. While 

Dr. Warfield testified that there are a 

variety of situations which would 

prompt further investigation of a 

patient’s story (i.e., slurred speech, 

being very sleepy, changing their story, 

erratic behavior, shaking hands, track 

marks on physical exam, id. at 595), she 

then explained: 

But I think a patient who comes in and 

tells me they have pain, and their pain is 

consistent with what I know from my 

experience is a real medical condition—in 

other words, someone comes in and says, you 

know, I was in an accident; I hurt my right 

lower back, and I subsequently have pain 

going down my leg, and it goes into my toes, 

and I know that’s consistent with a real 

medical entity, and I look at their MRI and 

they have findings that are consistent with 

that, and their physical examination is 

consistent with that, I don’t go and get old 

medical records or further verify what they 

have. 

Id. at 595–96.17 See also id. at 628 (Dr. 

Warfield’s testimony: ‘‘occasionally 

there are patients who it’s very obvious 

that they don’t need the drug. Their 

physical exam is inconsistent with their 

MRI.’’). 

The ALJ then asked Dr. Warfield 

whether ‘‘she would expect a Georgia 

doctor to be mindful’’ of the Guidelines 

published in the Georgia’s Board 

January 2011 newsletter ‘‘when 

evaluating patients who present [with] 

chronic pain?’’ Id. at 597. She answered: 

Yes. I mean, I would expect the physician 

to be mindful of it, but I would expect a 

physician to individually decide which of 

those is appropriate for their particular 

patient and which are not. I don’t see 

guidelines as being laws. They’re—you 

know, certainly everybody should have a 

history; certainly a physical examination 

should be done. And, you, I think the way 

those things are done and how they’re 

documented in the record and how extensive 

a physical examination is and such is really 

up to the individual physician to decide for 

an individual patient. 

Id. Dr. Warfield then asserted that while 

she gives lectures on opiate prescribing 

‘‘around the country,’’ the guidelines 

have not been well publicized and most 

physicians ‘‘don’t even know they 

exist.’’ Id. at 598. And on follow-up 

questioning by the ALJ, Dr. Warfield 

agreed that physicians ‘‘should make 

themselves familiar with those 

guidelines’’ but then maintained that 

‘‘most reasonable physicians in the 

same situation don’t know about those 

state guidelines.’’ Id. at 599–600.18

Dr. Warfield further asserted that 

there are ‘‘no national guidelines’’ and 

‘‘no standards in terms of exactly how 

one needs to treat a particular patient 

with pain when dealing with opiates,’’ 

and that she had ‘‘seen time and again 

with these kind of cases’’ that experts 

testify as to the ‘‘best possible practice, 

that in the perfect world, this is the way 

we should practice when we deal with 

these opiate patients.’’ Id. at 621. While 

Dr. Warfield testified that she ‘‘would 

agree with that,’’ she maintained that 

people do not practice that way. Id. She 

then explained: 

And unfortunately, I see a lot of experts 

who come forward and say that, you know, 

this is he [sic] best possible practice, and this 

is the way I do it. Therefore, anybody who 

doesn’t do this is practicing below the 

standard of care. And I think that’s what 

we’re really talking about here. We’re talking 

about the fact that . . . we all agree that there 

probably is a best possible practice out there, 

but the fact that someone is not practicing the 

best possible practice or not practicing the 

way a particular individual thinks is the law 

or standard doesn’t meant that they’re not 

practicing legitimate medicine. 

Id. at 622. 

On questioning by Respondent, Dr. 

Warfield then testified that she had 

reviewed ‘‘in detail’’ the charts for 

patients she identified by the initials of 

V.S., L.C., T.W., C.P., A.C., L.L., S.G., 

J.L., A.B., H.W., and J.B. and that she 

did not ‘‘see . . . any evidence . . . that 

this was not a legitimate medical 

practice or that these drugs were not 

prescribed . . . in the usual course of 

practice or were not appropriate.’’ Id. at 

623–24. While these initials apparently 

correspond to the patients other than 

the undercover officers whose medical 

records were reviewed by Dr. Hurd,19

Respondent also introduced a letter 

which Dr. Warfield had written on his 

behalf, apparently in connection with a 

criminal proceeding. RX F2. Therein, 

Dr. Warfield noted that she had 

reviewed various items of evidence 

related to the visits of the three 

undercover officers. Id. at 1. She then 

wrote: 

I do not see any evidence that the 

medications prescribed by [Respondent] were 

not prescribed in the usual course of care in 

a legitimate medical practice. Histories and 

physical examinations were conducted, a 

diagnosis was made and a plan was 

formulated. The patients underwent urine 

drug screens and follow-up visits with a 

review of the drug effects. And while I agree 

that the examinations were brief, I do not 

believe that this in any way indicated that 

the practice was not legitimate. 

Id. at 3. 

Dr. Warfield further suggested that 

Respondent had been deceived by the 

undercover officers who, in her view, 

‘‘were clearly very good actors’’ who 

‘‘knew what to say and how to argue 

their case for needing pain medicine.’’ 

Id. at 4. She then suggested ‘‘[t]here is 

no way any physician can ever be 

correct all the time about who is fooling 

them and who is not. They can only try 

to treat these patients in the best way 

they can without denying other patients 

the pain-relieving drugs they need and 

deserve.’’ Id. 

Finally, Dr. Warfield pointed to the 

two ‘‘occasions when [Respondent] was 

specifically offered cash for a 

prescriptions,’’ noting that ‘‘he quickly 

and adamantly refuse[d].’’ Id. Dr. 

Warfield maintained that ‘‘[t]his clearly 

demonstrates that this is not a cash for 

drugs business but rather a legitimate 

medical practice intent on providing 

relief to patients with chronic pain.’’ Id. 

Dr. Warfield then concluded that it was 

her belief that Respondent’s ‘‘treatment 

of these patients was part of a legitimate 

medical practice and that the drugs that 

were prescribed were done so in the 

course of usual medical practice.’’ Id. 

On questioning by the ALJ as to 

whether she would document a 

patient’s attempt to bribe her to obtain 


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additional drugs, Dr. Warfield offered a 

lengthy and evasive answer. She stated: 

I may or may not make a note of that. . . . 

I would certainly . . . you know, if I’m the 

only doctor seeing that patient, I may or may 

not write that down. What I would do is I 

would keep it in mind. . . . [Y]ou’re asking 

me what I would say to a doctor in training. 

I would say, you know. This is . . . someone 

who has some suspicious activity here, so 

you have to keep this in mind when you— 

you know, when you subsequently see the 

patient. 

Tr. 583–84. After then explaining that 

the appropriate thing is ‘‘to not take the 

bribe and know that this patient . . . 

possibly has been involved in some 

suspicious activity,’’ Dr. Warfield 

contended that just because the patient 

‘‘might be involved in some suspicious 

act or asking you to do something that 

isn’t legal doesn’t mean that the person 

does not have pain.’’ Id. at 584. 

Continuing with her answer, Dr. 

Warfield testified: 

I mean, you can believe that patient, that 

they still have pain and that they were 

honestly trying to get medication for a friend 

of theirs. You could discharge that patient. 

. . . You could send that patient off for a 

consultation with someone, or you could 

continue to treat the patient. I think all of 

those, depending on the situation, are 

reasonable at one time or another. 

I don’t think there are any guidelines or 

anything that says that if a patient comes in 

and offers you money to get a prescription for 

their sister and you refuse to do that, that you 

should automatically discharge that patient. 

Id. at 585. When asked a further time 

by the ALJ what a physician should note 

in the patient’s record regarding an 

‘‘offer to bribe,’’ Dr. Warfield asserted: 

Again, I don’t think there are any 

guidelines that say you should write that . . . 

in the record. I mean, would I argue if 

somebody wrote it in the record? No. Would 

I think that if somebody didn’t write it in the 

record, they didn’t have a legitimate medical 

practice? No. . . . 

We don’t write down everything that the 

patient tells us and says to us every time we 

see them in an office, and the fact that 

somebody doesn’t write down something that 

the patient says . . . I don’t think indicates 

that it’s below the standard of care or not a 

legitimate medical practice. It’s just in a busy 

practice, one can never, you know, write 

down everything the patient tells you. I think 

that if that’s a patient you’re going to be 

seeing again and again, that you keep that in 

mind when you’re seeing the patient. 

Id. at 586–87. However, unexplained by 

Dr. Warfield is how a doctor in a busy 

practice, such as Respondent’s which 

had nearly 900 patients, would be able 

to remember which of his patients had 

attempted to buy extra drugs if he only 

kept a mental note of the incidents. 

Dr. Hurd came to the exact opposite 

conclusion as to the lawfulness of the 

controlled substances prescriptions 

Respondent issued to both the 

undercover officers and multiple other 

patients whose charts he reviewed, 

including those persons who pled guilty 

to conspiring to unlawfully distribute 

controlled substances. In both his 

testimony and report, Dr. Hurd 

identified multiple deficiencies in the 

manner in which Respondent made 

prescribing decisions. 

For example, in his report, Dr. Hurd 

observed that Respondent performed 

‘‘inappropriate or minimal exams’’ and 

that ‘‘[i]n case after case, patients 

presented with complaints suggestive of 

spine disease with low back pain and 

leg pain, which would suggest . . . disc 

disease and potential neurologic 

comprise.’’ GX 35, at 4. He also noted 

that Respondent ‘‘used borderline [MRI] 

results in many cases to support the 

need for narcotic medication’’ and that 

‘‘[i]n other cases, signific[an]t findings 

were noted but no appropriate physical 

exam was performed to see if this was 

a danger or risk to the patient.’’ Id. Dr. 

Hurd then explained that: 

A diligent and responsible approach to 

patients like this is to do a direct and 

appropriate neurologic examination, in this 

case, to the low back and lower extremities. 

An appropriate focused exam would include 

testing of muscle strength for each nerve root 

in the lumbar spine, testing reflexes at the 

patella and Achilles tendons[,] as well as 

conducting a sensory exam which would at 

minimum consist of lightly touching or 

scratching the patient’s skin either with or 

without clothing to ascertain if there were 

sensory abnormalities such as decreased 

sensation, numbness, increased sensations or 

tingling when the skin is touched. It is not 

medically necessary to do a complete 

comprehensive exam at every visit 

depending on the period between visits but 

it certainly should be done at least once 

during a patient’s tenure with the physician. 

Id. Continuing, Dr. Hurd observed that: 

In virtually every case, including the ones 

with video surveillance, [Respondent] only 

documented an attempt at testing reflexes at 

the patella and a gross spontaneous motor 

exam when he asked the patient to lift their 

legs. This is not specific to each nerve root 

in the lumbar spine as would be expected in 

a comprehensive exam. No patient 

underwent a sensory exam that was either 

documented in the chart or demonstrated in 

video recordings that I reviewed. 

Id. 

Dr. Hurd then specifically addressed 

Respondent’s treatment of each of the 

undercover officers. With respect to 

Officer Lawson, Dr. Hurd observed that 

Lawson’s MRI report ‘‘demonstrated 

minor changes at L4–5 and L5–S1.’’ Id. 

at 7. He explained that while 

Respondent told Lawson that ‘‘the discs 

were pressing on his spinal cord[,] 

[t]hey were not . . . as the spinal cord 

ends several levels above L4–5 in the 

spine.’’ Id. Dr. Hurd then noted that 

while Lawson told Respondent that he 

had been in a Humvee accident, he 

asked no further questions about the 

accident. Id. Moreover, while 

Respondent asked Lawson if he had 

numbness or tingling in his legs, 

Lawson denied having either symptom. 

Id. 

Dr. Hurd characterized Respondent’s 

physical exam on Lawson as ‘‘cursory’’ 

as it was limited to three tests: (1) 

Testing Lawson’s patellar reflexes with 

a hammer, (2) having Lawson lie on his 

back on the exam table and lift each leg 

without Respondent resisting the 

movements to determine Lawson’s 

muscle strength, and (3) having Lawson 

lie in the prone position and palpating 

his back muscles. Id.; see also Tr. 491– 

92. Dr. Hurd then identified four 

important tests that were not performed, 

including: (1) Testing Lawson’s leg 

strength against resistance to ‘‘either 

rule out or . . . in a more serious 

problem’’; (2) performing sensory testing 

of the skin dermatomes of Lawson’s legs 

to determine whether any abnormal MRI 

finding was either ‘‘minor’’ or 

‘‘something that was clinically 

significant’’; (3) testing Lawson’s 

Achilles reflexes; and 4) testing the 

range of motion of Lawson’s spine. GX 

35, at 7. 

Dr. Hurd also explained that ‘‘[t]he 

performance of a routine neurological 

exam’’ is warranted ‘‘on almost every 

patient’s initial visit’’ even if the patient 

did not present with ‘‘a strictly 

neurologic complaint.’’ Id. Dr. Hurd also 

explained that Respondent had at one 

point been board certified in internal 

medicine and would have known how 

to perform a neurologic exam. Id. 

Regarding the visit, Dr. Hurd further 

observed that Respondent did not 

discuss with Lawson his ‘‘activities of 

daily living,’’ or ‘‘any restrictions to be 

placed upon him during work or 

leisure.’’ Id. at 7–8. Dr. Hurd also 

faulted Respondent for failing to discuss 

the risks and benefits of using 

controlled substances. Id. at 8. While Dr. 

Hurd found that Respondent did 

document in the medical record that 

Lawson had told him that neither Lortab 

nor Percocet had helped him, Dr. Hurd 

observed that Respondent ‘‘offered no 

other rationale for the narcotic 

prescription’’ which included 120 

oxycodone 15mg for the month. Id. 

With respect to Lawson’s second visit, 

Dr. Hurd noted that while Lawson said 

he had better pain relief on the ‘‘oxy 

30s,’’ Respondent failed to perform a 

physical exam. Id. He also noted that 


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20On cross-examination, Respondent asked Dr. 

Hurd whether Vickery’s ‘‘yes’’ answers to questions 

on an intake form regarding whether his pain made 

him ‘‘irritable’’ and ‘‘angry’’ suggested the presence 

of ‘‘some anxiety.’’ Tr. 534. Dr. Hurd answered that 

it ‘‘[s]uggests there’s anger and irritability present, 

not necessarily anxiety.’’ Id. at 535. Respondent 

then asked Dr. Hurd whether Vickery’s ‘‘yes’’ 

answer to ‘‘[d]oes this pain interfere with sleep?’’ 

suggested ‘‘anxiety or a need for Xanax.’’ Id. Dr. 

Hurd replied: ‘‘not specifically. If your pain 

interferes with sleep, it may just indicate the need 

to relieve the pain, as opposed to taking away 

anxiety.’’ Id. Of further note, on one of the intake 

forms, TFO Vickery provide a ‘‘No’’ answer to the 

question: ‘‘does the pain give you feelings of 

anxiety?’’ GX 27, at 24. 

Respondent increased the prescription 

to 90 oxycodone 30mg. Id. 

Dr. Hurd noted that Lawson had been 

referred for an MRI before he was seen 

by Respondent. Id. Dr. Hurd stated that 

it was ‘‘unclear’’ why this ‘‘would 

occur’’ as apparently there was no 

medical indication for ordering an MRI 

(Respondent having yet to see Lawson) 

and there was ‘‘no emergency.’’ Id. 

Applying the Georgia Board’s 

Guidelines on using controlled 

substances to treat pain, Dr. Hurd 

opined that Respondent did not comply 

with step one because he did not 

perform an appropriate history and 

physical. GX 35, at 8. He also noted that 

Respondent failed to comply with other 

provisions of the Guidelines by failing 

to refer Lawson to a specialist; failing to 

document his rationale for prescribing 

opiates; failing to review Lawson’s 

prescription record and obtain his 

medical records; and failing to discuss 

the risks and benefits of narcotics. Id.; 

see also Tr. 494 (testimony of Dr. Hurd 

that ‘‘the first thing you need to do is 

. . . see if you can get any notes from 

the practice. Failing that, certainly 

you’d want to get some pharmacy 

records that showed what the patient 

was given.’’). 

In his testimony, Dr. Hurd also 

explained that it was a ‘‘red flag’’ that 

Lawson had told Respondent that his 

previous physician’s practice had been 

shut down. Tr. 494. Dr. Hurd further 

noted that Respondent did not take 

appropriate steps to verify Lawson’s 

claims. Id. 

Dr. Hurd thus concluded that the 

oxycodone prescriptions Respondent 

issued TFO Lawson were not for a 

legitimate medical purpose. Id. at 492. 

Regarding the visits of TFO Vickery, 

Dr. Hurd explained that his MRI report 

stated that he had ‘‘a ruptured disc that 

shoots out to the side of the spinal canal 

and pinches a nerve as it goes from the 

spine to the leg’’ and that ‘‘[t]his would 

be expected to cause pain in the left 

thigh and potentially some weakness’’ 

either extending or raising the leg. GX 

35, at 9. Dr. Hurd observed that ‘‘[t]his 

would normally be tested for by having 

the patient either sit or lay down and 

have them extend (straighten) their leg 

while the examiner has [his] hand on 

the patient’s ankle to see if [the patient] 

ha[s] enough strength to straighten their 

leg against some resistance.’’ Id. Dr. 

Hurd also explained that ‘‘[a]nother test 

that would be performed would be a 

sensory exam which would involve 

touching, scratching or using a sharp 

pin to poke the skin to see if there was 

any numbness or increased sensitivity.’’ 

Id. According to Dr. Hurd, a physician 

would use these tests to determine 

whether a herniated disc has resulted in 

significant nerve damage. Id. 

Dr. Hurd observed that Respondent’s 

physical of TFO Vickery was limited to 

checking his patellar reflexes, having 

him lay on his back and raise his legs, 

followed by having Vickery lay on his 

stomach and palpating his back. Id. 

While Dr. Hurd noted that it ‘‘was 

appropriate’’ to test Vickery’s patellar 

reflexes, he did not do an appropriate 

exam to test Vickery’s leg strength. Id. 

Dr. Hurd also explained that ‘‘[t]here 

was no examination of the patient’s 

peripheral nerves or his muscular 

strength to determine if the MRI finding 

might be valid.’’ Id. Dr. Hurd then 

opined that Respondent ‘‘prescribed 

without . . . a legitimate medical 

indication’’ both 90 oxycodone 30mg 

and 30 Xanax 1mg. Id.; see also Tr. 539– 

40 (Dr. Hurd’s testimony that the tests 

Respondent performed during the 

physical exam ‘‘are gross tests that don’t 

discriminate between nerve levels’’); id. 

at 549 (Explaining that ‘‘usually a 

straight leg raise’’ is performed by the 

doctor picking up the patient’s leg to see 

if the ‘‘nerve back there is irritated, so 

it sends the pain down their leg. Having 

[the patient] pick it up by [himself] does 

not give you that same thing, because 

they can actively guard when they pick 

it up.’’). 

With respect to Vickery’s second visit, 

Dr. Hurd noted that ‘‘[n]o significant 

exam was performed [and] yet 

[Respondent] prescribed’’ 90 pills of 

Opana ER 40mg. GX 35, at 9. Dr. Hurd 

then observed that Opana ER is ‘‘to be 

taken every 12 hours and is not known 

to be given legitimately [at] 90 per 

month’’ as a prescription for sixty 

tablets ‘‘would suffice for its correct 

dosing.’’ Id. As found previously, the 

Opana prescriptions Respondent wrote 

called for the drug to be taken TID, or 

three times a day, and not twice per day. 

Dr. Hurd also observed that while 

Respondent again prescribed Xanax to 

Vickery, ‘‘no discussion of the [TFO’s] 

anxiety had taken place.’’ Id. 

In his testimony, Dr. Hurd further 

explained that ‘‘[i]t is important and 

incumbent upon a physician to 

document that there is some evidence of 

anxiety, and [that] you’ve reached a 

medical diagnosis’’ that ‘‘justif[ies] the 

treatment.’’ Tr. 495. Dr. Hurd then 

opined that the Xanax prescription was 

not issued for a legitimate medical 

purpose.20 Id. And when asked if the 

opioid prescriptions that Respondent 

wrote at this visit were issued for a 

legitimate medical purpose, Dr. Hurd 

opined that ‘‘[t]hey were not.’’ Id. at 

495–96. 

The Government also asked Dr. Hurd 

about TFO’s Vickery offer during this 

visit of additional cash for extra drugs. 

Tr. 497. While Dr. Hurd explained that 

‘‘it’s good that [Respondent] did not 

accept money,’’ TFO Vickery was 

‘‘absolutely telling’’ Respondent that he 

was ‘‘going to traffic in drugs.’’ Id. at 

498. Dr. Hurd then explained that a 

patient such as Vickery ‘‘should not be 

in any legitimate practitioner’s office.’’ 

Id. 

As for Vickery’s third visit, in his 

report, Dr. Hurd observed that 

Respondent had documented in the 

progress note that the TFO was 

‘‘[h]aving more problems with anxiety,’’ 

that he ‘‘continued to [complain of] 

severe back pain,’’ and that he was 

‘‘requesting additional pain meds.’’ Id. 

at 9. Dr. Hurd again found that ‘‘no 

significant physical exam was done,’’ 

noting that there was ‘‘[n]o motor 

testing, no sensory testing, and no 

testing of reflexes.’’ Id. Dr. Hurd then 

noted that Respondent again prescribed 

Vickery 90 tablets of Opana ER 40mg, 

‘‘which was outside the regular 

prescribing parameters of this drug,’’ 

and that he had also given Vickery 40 

tablets of Percocet 10, as well as 

increased the Xanax prescription from 

30 to 45 tablets. Id. 

Regarding this visit, Dr. Hurd testified 

that TFO Vickery’s attempt to purchase 

Xanax for a friend should have resulted 

in Respondent terminating the doctorpatient relationship. Tr. 499–500. He 

further explained ‘‘that this is different 

than a patient . . . whom you suspect 

has addiction’’ and should be referred to 

‘‘addiction treatment’’ and not given 

‘‘more medicine.’’ Id. at 500. Instead, it 

‘‘represented drug trafficking’’ on 

Vickery’s part. Id. Dr. Hurd then added 

that given Vickery’s attempt ‘‘to bribe’’ 

him, it was not appropriate for 

Respondent ‘‘to increase the medicine 

that the patient just asked for,’’ i.e., the 

Xanax. Id. at 501. Moreover, according 

to Dr. Hurd, this incident should have 

been documented in the patient record. 

Id. at 560. Yet it wasn’t. See GX 27, at 

26. 


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21According to Dr. Hurd, A.B. had reported that 

her pain with medication was a ‘‘three’’ at the visit 

during which Respondent reduced her medication 

to 165 tablets of oxycodone 30mg, and she reported 

that her pain with medication was a ‘‘two’’ at the 

visit where he reduced her medication to 180 

oxycodone 20mg. GX 36a, at 2. 

With respect to Vickery’s fourth and 

final visit, Dr. Hurd noted that while 

Respondent changed his narcotic 

prescription from Opana 40mg to 

oxycodone 25mg and decreased the 

Xanax from 45 to 30 tablets, ‘‘he added 

[30] Soma, a potent muscle relaxant, to 

be taken at bed time.’’ Id. at 10. Thus, 

Dr. Hurd found that Respondent 

‘‘bumped up his sedative effect by 

giv[ing] him’’ the Soma. Id. 

In his testimony, Dr. Hurd further 

noted the discussion between Vickery 

and Respondent during which Vickery 

changed his story regarding his pain 

level and Respondent observed that he 

did not think that Vickery was ‘‘that bad 

off’’ and that his urine drug screen 

‘‘showed nothing in [his] system.’’ Tr. 

503. After explaining that Opana ER is 

an extended release medicine, which is 

supposed to last twelve hours between 

doses and that there is no reference in 

the literature to prescribing it three 

times a day, Id. at 503–4, Dr. Hurd also 

observed that Vickery was prescribed ‘‘a 

ton of medicine’’ and that he could not 

have run out of medicine ‘‘without 

going through withdrawal,’’ and yet 

there was ‘‘no evidence this patient was 

in withdrawal.’’ Id. at 504. Dr. Hurd 

thus concluded that ‘‘similar to the 

previous patient,’’ Respondent’s ‘‘care 

fell short according to the guidelines’’ in 

that ‘‘he did not perform an appropriate 

history and physical’’ and ‘‘did not do 

any physical exam of significance.’’ GX 

35, at 10. Dr. Hurd further faulted 

Respondent because ‘‘he did not refer 

[TFO Vickery] to an outside specialist’’ 

and ‘‘did not obtain any old records.’’ 

Id. 

The Government also entered into 

evidence Dr. Hurd’s findings based on 

his review of the patient charts of J.L., 

A.B., J.B., K.C., S.P., L.C., S.G., V.S., 

L.L., H.W., and T.W. See GX 35, at 12– 

13; GX 36a. While these findings were 

not the principal focus of the 

Government’s case, Dr. Hurd’s findings 

with respect to these patients provides, 

in some respects, a more complete 

picture of Respondent’s prescribing 

practices than the undercover visits 

because several of the patients made an 

extensive number of visits to Liberty. 

For example, A.B., who was from 

Greeneville, Tennessee, made twelve 

visits to Liberty. GX 36a. At her first 

visit, A.B. said that she had been in a 

‘‘severe’’ motor vehicle accident two 

years earlier and that her current 

prescriptions were 210 oxycodone 

30mg, 120 oxycodone 15 mg, and 30 

Xanax .25mg. Id. at 1. A.B. obtained an 

MRI at Greater Georgia Imaging the 

same day as her initial visit, which 

Respondent noted as being abnormal in 

his physical exam note. Id. Respondent 

diagnosed A.B. has having thoracic 

spasm, lumbar radiculopathy, and four 

bulging discs, with three of them (L5– 

S1, L3–4, L2–3) ‘‘involving’’ their 

respective nerve root. Respondent 

prescribed 180 oxycodone 30mg to A.B. 

at this visit. Id. 

However, according to Dr. Hurd, 

A.B.’s MRI report presented ‘‘minimal 

findings’’ and Respondent’s physical 

exam did not note a ‘‘neurologic 

abnormality.’’ Id. at 2. Moreover, 

Respondent repeatedly provided A.B. 

with prescriptions for 180 oxycodone 

30mg, although he did decrease the 

prescription twice (to 165 oxy 30mg and 

then to 180 oxy 20mg 21) before he again 

prescribed 180 oxycodone 30mg at her 

eleventh monthly visit, when she 

reported her pain as a ‘‘seven.’’ Id. 

However, Dr. Hurd observed that at 

this visit, ‘‘[t]here was no change in her 

exam findings,’’ and ‘‘to this date,’’ 

Respondent had not done ‘‘a neurologic 

exam.’’ Id. He further noted that ‘‘[t]his 

is the 11th monthly visit in a row that 

this patient has been treated with large 

doses of oxycodone . . . with minimal 

findings on MRI’’ and that A.B. had not 

been referred ‘‘for spinal injections, 

spinal surgery consultation, physical 

therapy, acupuncture, psychological 

evaluations, or any second opinion.’’ Id. 

Regarding Respondent’s physical 

exams of A.B., Dr. Hurd identified seven 

items which were not documented as 

having been performed. More 

specifically, Dr. Hurd observed that 

there was no documentation of: (1) ‘‘an 

analysis of the patient’s gait’’; (2) an 

examination of the range of motion of 

A.B.’s lumbar spine; (3) a sensory 

examination of A.B.’s arms and legs; (4) 

strength testing of A.B.’s arms and legs; 

(5) which ‘‘deep tendon reflexes were 

tested’’; (6) a pupil examination to 

determine if narcosis existed; and 7) a 

mental status examination. Id. at 3. Dr. 

Hurd explained that ‘‘all of these exam 

techniques are designed to determine 

the clinical significance of the MRI 

findings’’ and ‘‘is a standard of care in 

determining the cause of pain and 

dysfunction in the back and lower 

extremities.’’ Id. 

Also, notwithstanding that A.B. made 

twelve visits to Respondent between 

April 12, 2011 and March 14, 2012, Dr. 

Hurd found that neither ‘‘old [medical] 

records’’ nor ‘‘pharmacy records were 

referenced in the chart.’’ Id. at 2. Based 

on Respondent’s failure to obtain A.B.’s 

records, his failure to perform adequate 

physical examinations, his failure to use 

any treatments other than medication, 

Dr. Hurd concluded that Respondent 

lacked a legitimate medical purpose 

when he prescribed to A.B. Id. at 3–4. 

J.B., who was from Rogersville, 

Tennessee, made twelve visits to Liberty 

which began on March 3, 2011. GX 36b, 

at 1. She complained of severe lower 

back pain caused by motorcycle and 

motor vehicle accidents. Id. She too 

obtained an MRI at Greater Georgia 

Imaging on the morning of her initial 

visit. Id. She received 120 oxycodone 

30mg at each visit. Id. at 2. 

Here again, Dr. Hurd observed that 

Respondent did not review J.B.’s prior 

medical or pharmacy records (and there 

are no such records in her patient file, 

see GX 11), notwithstanding that at her 

initial visit, she wrote on one of the 

intake forms that her current medication 

included ‘‘7–8 Roxycodone 30mg, 5–6 

Roxycodone 15mg (breakthrough pain),’’ 

and ‘‘Xanax to sleep 2mg (2 day).’’ GX 

11, at 70; GX 36B, at 2. Moreover, Dr. 

Hurd found that there was no 

documentation that Respondent had 

performed the seven tests he identified 

as required by the standard of care in 

his review of A.B. GX 36B, at 2. He then 

observed that ‘‘[t]he MRI and physical 

findings do not . . . warrant treatment 

with that level of narcotic’’ and that the 

lack of exam findings with respect to 

these seven tests ‘‘suggests that there is 

no correlation between the patient’s 

MRI and her physical findings.’’ Id. He 

also noted that Respondent did not offer 

conservative therapy to J.B. including 

physical therapy, trigger point 

injections, epidural injections or a 

surgical referral. Id. Dr. Hurd thus 

concluded that Respondent’s 

prescribing to J.B. did not meet ‘‘the 

standard of care for treating with 

opioids’’ and that he lacked a legitimate 

medical purpose. Id. 

L.L., who was from Kingsport, 

Tennessee, made sixteen visits between 

January 14, 2011 and April 11, 2012. GX 

36h. At his initial visit, L.L., who 

worked as a horsebreaker, complained 

that he had been having severe back 

pain for three years following a work 

related incident but denied ‘‘any 

numbness or tingling.’’ Id. at 1. He also 

claimed that he had taken oxycodone 

30mg, Dilaudid and Xanax 1mg. Id. L.L. 

presented an MRI, which had been done 

a year and a half earlier in Florida; the 

MRI found that he had a moderate size 

disc protrusion at L5–S1 with bulging of 

the annulus and bilateral nerve root 

effacement and a small disc protrusion 

at L4–5 with no effacement of the nerve 

root. Id. at 2. The MRI Report explicitly 

‘‘[r]ecommended correlation with the 


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clinical symptoms and neurologic exam 

to assess the significance of the above 

findings.’’ Id. 

Here again, Dr. Hurd found that 

Respondent did not document, with 

respect to any of the physical exams, the 

performance of any of the seven tests he 

previously identified (in discussing 

A.B.) as being part of the ‘‘standard of 

care in determining the causation of 

pain and dysfunction in the back and 

lower extremities.’’ Id. Yet Respondent 

prescribed 120 oxycodone 30mg (as well 

as 30 Xanax 1mg) which, at the next 

visit, he increased to 150 oxycodone 

30mg (and 30 more Xanax 1mg), 

notwithstanding that the note for the 

second visit contained ‘‘no further 

delineation of the physical exam to 

corroborate the MRI findings and there 

[was] no mention of’’ an anxiety 

diagnosis (which was not listed until 

two months later). Id. 

According to Dr. Hurd, L.L. requested 

more medication at his May 2011 visit, 

and Respondent increased his 

oxycodone prescription to 160 tablets, 

even though he again noted that ‘‘[t]here 

was no more delineation of the physical 

exam to demonstrate a diagnosis 

consistent with the MRI.’’ Id. at 3. 

Dr. Hurd then found that at L.L.’s June 

2011 visit, Respondent added a 

diagnosis of lumbar radiculopathy. Id. 

Dr. Hurd found, however, that 

Respondent had at no point ‘‘done a 

neuromuscular exam to delineate the 

reason for’’ this diagnosis. Id. He also 

noted that while at this visit, 

Respondent had decreased the amount 

of oxycodone 30mg by twenty pills, he 

then added a prescription for 60 

Percocet 10/325, thus providing the 

same amount of oxycodone to L.L. Id. 

Dr. Hurd opined that there was ‘‘no 

medical rationale for this prescribing.’’ 

Id. 

Dr. Hurd further found that 

Respondent maintained the same 

medication regimen through April 2012, 

even though L.L. continued to complain 

of pain at a level of 5 to 6 out of 10. Id. 

at 3. Respondent, however, never 

offered to refer L.L. for a spinal injection 

or a surgical consultation. Id. Nor did he 

ever offer to refer L.L. for ‘‘more 

conservative’’ treatment such as 

acupuncture or physical therapy. Id. at 

3–4. Dr. Hurd also found that there was 

no evidence that Respondent had 

reviewed L.L.’s previous medical 

records. Based on his findings, Dr. Hurd 

found that Respondent’s prescribing to 

L.L. did not meet ‘‘the standard of care 

for treating with opioids’’ and that he 

lacked a legitimate medical purpose. Id. 

H.W., who was from Midway, 

Tennessee, made twenty-three visits to 

Liberty beginning on April 28, 2011. GX 

36I. She reported a history which 

included three motor vehicle accidents, 

a fall, and a fractured pelvis. Id. at 1. 

She complained of ‘‘severe lower back 

pain radiating down [her] right leg,’’ as 

well as ‘‘neck pain radiating down [her] 

right arm,’’ and reported that she was 

currently on 180 oxycodone 30mg, 90 

oxycodone 15mg, and 60 Xanax 2mg. 

Id., see also GX 13, at 13. She also 

provided an MRI, which was done by a 

facility in Florida fifteen months earlier 

and which listed the patient’s date of 

birth as being ‘‘4/12/78.’’ GX 36I, at 2. 

However, H.W.’s driver’s license lists 

her date of birth as ‘‘11/26/88.’’ Id. 

Respondent performed a physical 

exam and documented that he found 

severe tenderness over H.W.’s cervical 

trapezius muscle, her lumbar 

paravertebral muscles, and her sacrum, 

and tenderness over her sciatica. Id. His 

physical exam findings also included 

‘‘DTR + 2,’’ and an abnormal straight leg 

lift and cross straight leg lift. Id. 

Respondent diagnosed H.W. as having 

herniated discs at L5–S1and L4–5 and a 

bulging of the annulus fibrosis at L3–4 

(each of which were listed as MRI 

findings), as well as having lumbar 

radiculopathy and cervical radiculitis. 

Id. at 1–2. He then prescribed 120 

oxycodone 30mg and Xanax 1mg at this 

visit. Id. at 1. 

Dr. Hurd again found that Respondent 

did not document having performed any 

of the seven tests (discussed above) at 

any of H.W.’s twenty-three visits. Id. at 

2. While at her second visit, Respondent 

noted that he would consider 

performing a trigger point injection, at 

H.W.’s third visit, he documented that 

she ‘‘was afraid’’ to have one done but 

would reconsider at her next visit. Id. 

According to Dr. Hurd, a trigger point 

injection was never done on H.W. Id. 

At this visit, Respondent prescribed 

130 oxycodone 30mg and 45 Xanax 1mg 

to H.W. Id. Dr. Hurd found that 

Respondent ‘‘continued to prescribe 

those same dosages and quantities at 

every visit that [he] reviewed.’’ Id. He 

also observed that notwithstanding 

Respondent’s ‘‘diagnoses of lumbar 

radiculopathy[,] cervical radiculitis[,] 

and [a] labral tear left hip[,] no 

treatment other than medications was 

noted.’’ Id. 

Dr. Hurd found that there were no 

prior medical records or pharmacy 

records for H.W. Id. He explained that 

‘‘[i]n the absence of independent 

evidence . . . that she was prescribed 

and consumed [o]xycodone 30mg four 

to six times a day, [Respondent] [was] 

risking either an acute narcotic 

overdose, or, if not consumed by the 

patient, possible diversion.’’ Id. at 3. He 

then observed that a positive urine drug 

screen ‘‘may indicate the patient has 

consumed some narcotic, but it does not 

indicate the dosage or total quantity’’ 

the patient has been prescribed or 

consumed. Id. 

Noting that Respondent did not 

review H.W.’s prior medical records, 

and based on Respondent’s failure to 

perform the seven tests listed above, Dr. 

Hurd opined ‘‘that there [was] no 

correlation between the patient’s MRI 

and his physical findings.’’ Id. at 2–3. 

He also opined that ‘‘[t]he MRI and 

physical findings [did] not . . . warrant 

treatment with that level of narcotic.’’ 

Id. at 2. He thus concluded that ‘‘the 

standard of care for treating [with] 

opioids has not been met.’’ Id. He 

further concluded that the prescriptions 

lacked a legitimate medical purpose. Id. 

at 3. 

V.S., a 48-year old female from Coral 

Springs, Florida, saw Respondent 

eleven times between January 25, 2011 

and March 5, 2012. GX 36G, at 1–2. She 

reported having been ‘‘in several bad car 

accidents’’ and having ‘‘recently . . . 

broken [her] right arm’’ which 

apparently was in a cast.’’ Id. at 1. She 

also complained of ‘‘severe low back 

pain’’ which made it ‘‘very difficult for 

her to perform any activities that [cause] 

pain’’ and reported that she had been 

taking oxycodone 30mg six times a day, 

Dilaudid 8mg for breakthrough pain, 

and Xanax 2mg, twice a day, ‘‘for two 

years.’’ Id. 

V.S. presented an MRI, which had 

been done more than a year earlier, at 

a facility located in Boca Raton, Florida. 

Id. While the MRI report listed findings 

of three bulging discs, one of which 

(L5–S1) was causing narrowing of the 

right neuroforamen and another (L4–5) 

which causing encroachment of both 

neuroforamen, Dr. Hurd explained that 

this was a ‘‘mild to moderately 

abnormal MRI.’’ Id. at 1–2. 

Notably, in the physical exam section 

of the progress note, Dr. Hurd found that 

Respondent documented only that he 

had palpated her paravertebral muscles 

in the area of V.S.’s lumbar spine 

(finding ‘‘severe tenderness’’) and that 

he had V.S. perform a straight leg lift 

(which was ‘‘abnormal’’). Id. at 1. Here 

again, Respondent did not perform any 

of the seven tests Dr. Hurd previously 

identified as necessary ‘‘to determine 

the clinical significance of the MRI 

findings,’’ which Dr. Hurd explained 

was ‘‘a standard of care in determining 

the causation of pain and dysfunction in 

the back and lower extremities.’’ Id. at 

2–3. 

Respondent nonetheless diagnosed 

V.S. as having chronic back pain (along 

with the three bulging discs). Id. at 1. 

Respondent prescribed to V.S. 180 


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tablets of oxycodone 30mg, 80 Dilaudid 

8mg (one tablet every eight hours), and 

60 Xanax 2mg (one tablet twice a day). 

Id. 

At V.S.’s second visit, she again 

complained of ‘‘severe’’ back pain 

‘‘when not on medication’’ and ‘‘severe 

pain’’ in her right arm which had screws 

in it. Id. at 2. She further reported that 

her pain was worse when she was not 

taking Xanax ‘‘because of her anxiety.’’ 

Id. Yet the only test Respondent 

documented as having performed was 

palpating V.S.’s paravertebral muscles 

in her lumbar region. Id. Respondent 

diagnosed V.S. as having a ‘‘disc bulge 

L4–5 with neuroforaminal 

encroachment,’’ and added a diagnosis 

of ‘‘lumbar radiculopathy.’’ Id. He 

issued her prescriptions for 180 

oxycodone 30mg, 50 Dilaudid 8mg, 60 

Xanax 2mg, and 30 Flexeril, a noncontrolled muscle relaxant. Id. 

According to Dr. Hurd, Respondent 

issued V.S. the exact same three 

controlled substance prescriptions 

through her last visit of March 5, 2012. 

Id. Dr. Hurd found that there were ‘‘no 

new exam findings to corroborate the 

findings on MRI,’’ further noting that 

Respondent never documented the 

performance of the seven tests he 

previously identified as the standard of 

care. Id. at 2–3. He also observed that 

there were no old medical records, nor 

pharmacy records ‘‘referenced in the 

chart.’’ Id. at 2. 

Based on the chart review, Dr. Hurd 

further observed that Respondent never 

considered offering trigger point 

injections or referral to specialists such 

as ‘‘an interventional spine physician 

who could perform an epidural steroid 

injection or . . . a spine surgeon to 

assess’’ whether surgery would reduce 

V.S.’s pain. Id. at 3. Dr. Hurd also noted 

that Respondent did not offer to refer 

V.S. for physical therapy, acupuncture, 

biofeedback therapy, a psychological 

assessment, or a second opinion. Id. 

Dr. Hurd thus concluded that 

Respondent did not meet the standards 

for prescribing opioids with respect to 

V.S. Id. He further concluded that 

Respondent lacked a legitimate medical 

purpose when he prescribed controlled 

substances to V.S. Id. 

T.W., a thirty-six year old male, saw 

Respondent fifteen times between 

February 4, 2011 and March 20, 2012. 

GX 9, at 2–16. T.W. presented with a 

history of a gunshot wound to his 

abdomen (fifteen years earlier) and a car 

accident (three years earlier) and 

complained of lower back pain, which 

according to the progress note, had 

gotten progressively worse, as well as 

‘‘numbness and tingling down [his] left 

leg.’’ GX 36J; GX 9, at 83. He further 

reported that his pain was a 10 without 

medication and a 5 with medication. GX 

9, at 83. 

T.W. reported having seen a 

chiropractor, as well as having received 

decompression therapy and an injection 

of some sort. Id.; GX 36J. He also 

reported having seen other doctors for 

this pain and that oxycodone 30mg had 

provided him with relief and that he 

had obtain some relief on Percocet, but 

none from Lortab. GX 9, at 83; id. at 16. 

Yet T.W.’s file does not contain records 

from his prior doctors or pharmacy 

records. See generally GX 9. 

T.W. presented an MRI report which 

he obtained from Greater Georgia 

Imaging on the same day as the day of 

his initial visit with Respondent. The 

MRI report (which did not include the 

name of the reading radiologist and was 

unsigned) found that T.W. had a left 

paracentral disc protrusion at L4–5 and 

a right far posterolateral disc protrusion 

at L3–4. GX 9, at 82. In the physical 

exam section of the progress note, 

Respondent documented four findings: 

(1) The existence of moderate to severe 

tenderness in the paravertebral muscles 

in the lumbar region; (2) the existence 

of severe tenderness in the left sciatic 

area; (3) that the straight leg lift was 

abnormal on the right side; (4) and that 

test of the Deep Tendon Reflexes was 

‘‘+1.’’ GX 9, at 16. 

With the exception of the latter test 

which did not specify which reflexes 

(knee or ankle) were tested, Respondent 

did not document having examined any 

of the other six items which Dr. Hurd 

explained are required to meet the 

standard of care. Id. Respondent 

diagnosed T.W. as having ‘‘lumbar 

radiculopathy,’’ ‘‘lumbar spasm,’’ and 

disc protrusions at L4–5 and L3–4. GX 

9, at 16. He then provided T.W. with a 

prescription for 30 oxycodone 30mg qd 

(one tablet per day), as well as Flexeril 

and Naproxen. Id. He also 

recommended that T.W. obtain an 

inversion table. Id. 

T.W. returned on March 3, 2011, and 

claimed that the medication had lasted 

only six days. GX 9, at 15. Respondent 

documented his physical exam findings 

as ‘‘severe tenderness paravertebral 

muscles lumbar spine’’ and ‘‘moderate 

tenderness lumbar spine.’’ Id. He then 

increased T.W.’s oxycodone 30mg 

prescription to 120 tablets. Id. 

Respondent continued prescribing this 

quantity until T.W.’s visit on July 28, 

when the latter complained of ‘‘having 

more severe pain’’ and Respondent 

increased the prescription to 140 tablets. 

Id. at 10–14; GX 36J, at 2. Respondent 

continued to prescribe 140 tablets at 

each visit until his last visit on March 

20, 2012, when T.W. again complained 

of ‘‘having more pain’’ and that the 

medication was ‘‘not lasting long 

enough.’’ GX 9, at 2–9; GX 36J, at 2. 

Respondent then increased the 

prescriptions to 155 tablets of 

oxycodone 30mg. GX 9, at 2. 

Throughout this period, Respondent 

never documented findings on a 

physical exam other than that he found 

varying degrees of tenderness over 

T.W.’s paravertebral muscles in the 

lumbar region. GX 9, at 2–9. As Dr. 

Hurd found, the progress notes for the 

remaining 14 visits contain no 

documentation that Respondent 

examined any of the seven items he 

identified as part of the standard of care 

after T.W.’s first visit. GX 36J, at 2–3. Dr. 

Hurd thus opined that there was ‘‘no 

correlation between the patient’s MRI’’ 

and the physical exam findings and that 

‘‘the MRI and physical findings’’ did not 

‘‘warrant treatment with that level of 

narcotic. Id. at 3. 

Dr. Hurd also observed that while the 

progress notes repeatedly listed 

diagnoses of ‘‘lumbar radiculopathy’’ 

and a bulging disc at L3 involving the 

nerve root, as well as that T.W. 

repeatedly rated his pain with 

medication at a 7–8, Respondent ‘‘never 

offered standard treatment such as 

lumbar epidural steroid injections or [a] 

surgical referral.’’ Id. at 2. Dr. Hurd thus 

concluded that Respondent did not 

‘‘meet the standard’’ for prescribing 

opioids and that the prescriptions he 

issued T.W. lacked a legitimate medical 

purpose. Id. at 3. 

Discussion 

Section 304(a) of the Controlled 

Substances Act (CSA) provides that a 

registration to ‘‘dispense a controlled 

substance . . . may be suspended or 

revoked by the Attorney General upon 

a finding that the registrant . . . has 

committed such acts as would render 

his registration under section 823 of this 

title inconsistent with the public 

interest as determined under such 

section.’’ 21 U.S.C. 824(a)(4) (emphasis 

added). With respect to a practitioner, 

the Act requires the consideration of the 

following factors in making the public 

interest determination: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing . . . 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. 


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22 In short, this is not a contest in which score 

is kept; the Agency is not required to mechanically 

count up the factors and determine how many favor 

the Government and how many favor the registrant. 

Rather, it is an inquiry which focuses on protecting 

the public interest; what matters is the seriousness 

of the registrant’s misconduct. Jayam Krishna-Iyer, 

74 FR 459, 462 (2009). Accordingly, as the Tenth 

Circuit has recognized, findings under a single 

factor can support the revocation of a registration. 

MacKay, 664 F.3d at 821. 

23As for factor one, the recommendation of the 

state licensing authority, the ALJ found that Georgia 

Composite Medical Board has not made an ‘‘express 

recommendation’’ in this matter. R.D. at 82. The 

ALJ further noted, however, Respondent’s 

testimony that the Board had subpoenaed some 46 

patient files including five files which were 

presented to Dr. Hurd and that the Board declined 

to take any action against his medical license. Id. 

(citing Tr. 309). Respondent did not, however, 

identify the names of the patients whose files were 

reviewed by the Board. See Tr. 309. Moreover, 

while Respondent testified, in essence, that the 

Board had found no reason to act, he did not 

produce any official document from the Board 

setting forth its reasons for not pursuing sanctions 

against his license. 

Although Respondent retains his state license, 

DEA has repeatedly held that while a practitioner’s 

possession of state authority constitutes an essential 

condition for maintaining a registration, see 21 

U.S.C. 802(21) & 823(f), it ‘‘‘is not dispositive of the 

public interest inquiry.’’’ George Mathew, 75 FR 

66138, 66145 (2010), pet. for rev. denied Mathew v. 

DEA, 472 Fed.Appx. 453, 455 (9th Cir. 2012); see 

also Patrick W. Stodola, 74 FR 20727, 20730 n.16 

(2009); Robert A. Leslie, 68 FR 15227, 15230 (2003). 

As the Agency has long held, ‘‘the Controlled 

Substances Act requires that the Administrator . . . 

make an independent determination [from that 

made by state officials] as to whether the granting 

of controlled substance privileges would be in the 

public interest.’’ Mortimer Levin, 57 FR 8680, 8681 

(1992). Thus, while Respondent satisfies the CSA’s 

requirement that he be currently authorized to 

dispense controlled substances under the laws of 

the State in which he practices medicine, this factor 

is not dispositive either for, or against, the 

continuation of Respondent’s registration. Paul 

Weir Battershell, 76 FR 44359, 44366 (2011) (citing 

Edmund Chein, 72 FR 6580, 6590 (2007), pet. for 

rev. denied Chein v. DEA, 533 F.3d 828 (D.C. Cir. 

2008)). 

Regarding factor three, there is no evidence in the 

record that Respondent has been convicted of an 

offense related to the manufacture, distribution or 

dispensing of controlled substances. However, as 

there are a number of reasons why a person may 

never be convicted of an offense falling under this 

factor, let alone be prosecuted for one, ‘‘the absence 

of such a conviction is of considerably less 

consequence in the public interest inquiry’’ and is 

thus not dispositive. Dewey C. MacKay, 75 FR 

49956, 49973 (2010), pet. for rev. denied MacKay v. 

DEA, 664 F.3d 808 (10th Cir. 2011). 

24However, as the Agency has held in multiple 

cases, ‘‘the Agency’s authority to deny an 

application [and] to revoke an existing registration 

. . . is not limited to those instances in which a 

practitioner intentionally diverts a controlled 

substance.’’ Bienvenido Tan, 76 FR 17673, 17689 

(2011) (citing Paul J. Caragine, Jr., 63 FR 51592, 

51601 (1998)); see also Dewey C. MacKay, 75 FR, 

at 49974. As Caragine explained: ‘‘[j]ust because 

misconduct is unintentional, innocent, or devoid of 

improper motive, [it] does not preclude revocation 

or denial. Careless or negligent handling of 

controlled substances creates the opportunity for 

diversion and [can] justify’’ the revocation of an 

existing registration or the denial of an application 

for a registration. 63 FR at 51601. 

‘‘Accordingly, under the public interest standard, 

DEA has authority to consider those prescribing 

practices of a physician, which, while not rising to 

the level of intentional or knowing misconduct, 

nonetheless create a substantial risk of diversion.’’ 

MacKay, 75 FR, at 49974; see also Patrick K. Chau, 

77 FR 36003, 36007 (2012). Likewise, ‘‘[a] 

practitioner who ignores the warning signs that 

[his] patients are either personally abusing or 

diverting controlled substances commits ‘acts 

inconsistent with the public interest,’ 21 U.S.C. 

Id. § 823(f). 

‘‘[T]hese factors are . . . considered 

in the disjunctive.’’ Robert A. Leslie, 

M.D., 68 FR 15227, 15230 (2003). It is 

well settled that I ‘‘may rely on any one 

or a combination of factors, and may 

give each factor the weight [I] deem[] 

appropriate in determining whether a 

registration should be revoked.’’ Id.; see 

also MacKay v. DEA, 664 F.3d 808, 816 

(10th Cir. 2011); Volkman v. DEA, 567 

F.3d 215, 222 (6th Cir. 2009); Hoxie v. 

DEA, 419 F.3d 477, 482 (6th Cir. 2005). 

Moreover, while I am required to 

consider each of the factors, I ‘‘need not 

make explicit findings as to each one.’’ 

MacKay, 664 F.3d at 816 (quoting 

Volkman, 567 F.3d at 222 (quoting 

Hoxie, 419 F.3d at 482)).22

The Government has the burden of 

proving, by a preponderance of the 

evidence, that the requirements for 

revocation or suspension pursuant to 21 

U.S.C. 824(a) are met. 21 CFR 

1301.44(e). However, ‘‘once the 

[G]overnment establishes a prima facie 

case showing a practitioner has 

committed acts which render his 

registration inconsistent with the public 

interest, the burden shifts to the 

practitioner to show why his continued 

registration would be consistent with 

the public interest.’’ MacKay, 664 F.3d 

at 817 (citing Medicine ShoppeJonesborough, 73 FR 364, 387 (2008) 

(citing cases)). 

Having considered all of the factors, I 

agree with the ALJ’s conclusion that the 

Government’s evidence with respect to 

factors two (Respondent’s experience in 

dispensing controlled substances) and 

four (Respondent’s compliance with 

applicable controlled substance laws), 

establishes that Respondent has 

committed acts which render his 

registration inconsistent with the public 

interest.23 21 U.S.C. 824(a)(4). 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

To effectuate the dual goals of 

conquering drug abuse and controlling 

both the legitimate and illegitimate 

traffic in controlled substances, 

‘‘Congress devised a closed regulatory 

system making it unlawful to 

manufacture, distribute, dispense, or 

possess any controlled substance except 

in a manner authorized by the CSA.’’ 

Gonzales v. Raich, 545 U.S. 1, 13 (2005). 

Consistent with the maintenance of the 

closed regulatory system, a controlled 

substance may only be dispensed upon 

a lawful prescription issued by a 

practitioner. Carlos Gonzalez, M.D., 76 

FR 63118, 63141 (2011). 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is not ‘‘effective’’ unless it is ‘‘issued for 

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). Under the 

CSA, it is fundamental that a 

practitioner must establish a bonafide 

doctor-patient relationship in order to 

act ‘‘in the usual course of . . . 

professional practice’’ and to issue a 

prescription for a ‘‘legitimate medical 

purpose.’’ See United States v. Moore, 

423 U.S. 122, 142–43 (1975); United 

States v. Lovern, 590 F.3d 1095, 1100– 

01 (10th Cir. 2009); United States v. 

Smith, 573 F.3d 639, 657 (8th Cir. 2009); 

see also 21 CFR 1306.04(a) (‘‘an order 

purporting to be a prescription issued 

not in the usual course of professional 

treatment . . . is not a prescription 

within the meaning and intent of [21 

U.S.C. 829] and . . . the person issuing 

it, shall be subject to the penalties 

provided for violations of the provisions 

of law related to controlled 

substances’’). 

As the Supreme Court has explained, 

‘‘the prescription requirement . . . 

ensures patients use controlled 

substances under the supervision of a 

doctor so as to prevent addiction and 

recreational abuse. As a corollary, [it] 

also bars doctors from peddling to 

patients who crave the drugs for those 

prohibited uses.’’ Gonzales v. Oregon, 

546 U.S. 243, 274 (2006) (citing Moore, 

423 U.S. 122, 135, 143 (1975)). 

Both this Agency and the federal 

courts have held that ‘‘establishing a 

violation of the prescription 

requirement ‘requires proof that the 

practitioner’s conduct went ‘‘beyond the 

bounds of any legitimate medical 

practice, including that which would 

constitute civil negligence.’’ ’ Laurence 

T. McKinney, 73 FR 43260, 43266 (2008) 

(quoting United States v. McIver, 470 

F.3d 550, 559 (4th Cir. 2006). See also 

United States v. Feingold, 454 F.3d 

1001, 1010 (9th Cir. 2006) (‘‘[T]he Moore 

Court based its decision not merely on 

the fact that the doctor had committed 

malpractice, or even intentional 

malpractice, but rather on the fact that 

his actions completely betrayed any 

semblance of legitimate medical 

treatment.’’).24


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824(a)(4), even if [he] is merely gullible or naı ̈ve.’’ 

Jayam Krishna-Iyer, 74 FR 459, 460 n.3 (2009); see 

also Chau, 77 FR, at 36007 (holding that even if 

physician ‘‘did not intentionally divert controlled 

substances,’’ State Board Order ‘‘identified 

numerous instances in which [physician] recklessly 

prescribed controlled substances to persons who 

were likely engaged in either self-abuse or 

diversion’’ and that physician’s ‘‘repeated failure to 

obtain medical records for his patients, as well as 

to otherwise verify their treatment histories and 

other claims, created a substantial risk of diversion 

and abuse’’) (citing MacKay, 75 FR, at 49974). 

25 Dr. Warfield also asserted that ‘‘how extensive 

a physical examination is and such is really up to 

the individual physician to decide for an individual 

patient.’’ Tr. 597. Undoubtedly, the scope of an 

appropriate physical exam is based on the nature 

of a patient’s pain complaint and symptoms. To the 

extent Dr. Warfield’s statement suggests that there 

is no standard of care which governs the scope of 

an appropriate physical exam, it is refuted by 

numerous judicial decisions in both medical 

malpractice and criminal cases, medical board 

decisions involving allegations of unprofessional 

conduct, and Agency decisions involving 

allegations of unlawful prescribing. 

26Based on her experiences lecturing throughout 

the country, Dr. Warfield asserted that most 

physicians are unaware of the existence of the 

controlled substance prescribing guidelines that 

have been published by numerous States. However, 

many of the States have long published policy 

statements on the use of controlled substances to 

treat pain and it is not as if Dr. Warfield has 

conducted polling on the issue. 

Moreover, even if knowledge of guidelines 

applicable to one’s profession cannot be presumed 

in the same manner as is knowledge of duly 

promulgated laws and regulations, in his 

Exceptions, Respondent asserted that ‘‘[b]efore 

working at liberty center, [in] December 2010 I went 

online reviewing information regarding pain 

management on [the] Georgia composite medical 

board site.’’ Resp. Exceptions, at 4. Of note, the 

Georgia Board adopted the Guidelines in January 

2008. 

As found above, both parties elicited 

the testimony of expert witnesses, who 

came to diametrically opposite 

conclusions regarding the lawfulness of 

the prescriptions. The ALJ ultimately 

resolved this issue, concluding that Dr. 

Hurd’s opinion testimony was entitled 

to more weight than that of Dr. Warfield 

because of his greater familiarity with 

the standards of medical practice that 

exist in Georgia. I agree, and while I am 

mindful of Dr. Warfield’s professional 

accomplishments and her testimony 

suggesting that Dr. Hurd was applying a 

‘‘best possible practices’’ standard in 

evaluating Respondent’s prescribing 

practices, rather than the actual 

standard of care as generally practiced 

by pain management physicians, I find 

that the evidence supports a finding that 

Respondent repeatedly breached the 

standard of care (applicable in Georgia) 

and did so in a manner which 

establishes that he acted outside of the 

usual course of professional practice 

and lacked a legitimate medical purpose 

in issuing many (if not all) of the 

prescriptions. 

Notably, Dr. Warfield did not dispute 

Dr. Hurd’s contentions that half of the 

patients whose MRIs show an 

abnormality do not have any pain and 

that an MRI alone ‘‘is not sufficient’’ to 

form a diagnosis of chronic pain. Tr. 

452. Indeed, Dr. Warfield agreed with 

Dr. Hurd that a physical examination 

must be done and that a physician must 

determine whether the examination’s 

findings are consistent with the MRI’s 

findings and then correlate those 

findings with the patient’s pain 

complaint. Compare Tr. 595–96 & 628 

with id. at 452–54 and 485–86. 

Moreover, even Respondent 

acknowledged that ‘‘sometimes you can 

have an abnormal MRI, and a person is 

not having pain. That’s why we do those 

exams . . . to check the nerve roots, to 

see if it’s consistent with the MRI report. 

Id. at 287. 

Dr. Hurd also specifically identified 

multiple tests (including examinations 

of the patient’s gait, range of motion, 

sensory, strength, mental status, and 

pupils) that Respondent did not perform 

in examining both the undercover 

officers and the chart-review patients 

that he maintained were required by the 

standard of care to properly diagnose 

the patients; he also explained why the 

straight leg lift was not an adequate test 

because it was not specific to each nerve 

root. Notwithstanding that Dr. Warfield 

reviewed Dr. Hurd’s report in 

preparation for her testimony, she did 

not identify a single test among those 

which Dr. Hurd testified were required 

by the standard of care as being 

unnecessary to properly diagnose a 

patient.25 Thus, I reject her testimony in 

which, while she agreed with Dr. Hurd 

‘‘that the examinations were brief,’’ she 

offered the conclusory assertion that she 

did ‘‘not believe that this in any way 

indicated that [Respondent’s] practice 

was not legitimate.’’ RX F2, at 3. 

I therefore give substantial weight to 

Dr. Hurd’s testimony and report in 

which he concluded that Respondent 

repeatedly failed to conduct adequate 

physical exams for diagnosing the 

undercover officers and various patients 

as having chronic pain which warranted 

the prescribing of oxycodone. So too, I 

give substantial weight to Dr. Hurd’s 

conclusion that Respondent also 

prescribed Xanax without a legitimate 

medical purpose, because there was no 

evidence that he had properly evaluated 

whether the patients had anxiety. 

Moreover, given that for each of the 

patients, Dr. Hurd identified multiple 

tests (indeed, as many as seven different 

tests which should have been done but 

were not), I conclude that Respondent’s 

breaches of the standard of care were 

not merely malpractice, but rather, 

establish that the prescriptions lacked a 

legitimate medical purpose and that he 

knowingly diverted controlled 

substances. 21 CFR 1306.04(a). 

This conclusion is buttressed by Dr. 

Hurd’s testimony and report which 

identified multiple other ways in which 

Respondent failed to comply with the 

Georgia Board’s Guidelines for the Use 

of Controlled Substances for the 

Treatment of Pain: Ten Steps. See RX A. 

It is also supported by the evidence of 

TFO’s Vickery’s undercover visits. 

To be sure, Dr. Warfield took issue 

with Dr. Hurd’s reliance on the 

Guidelines. More specifically, Dr. 

Warfield testified that she does not ‘‘see 

guidelines as being laws’’ and that 

‘‘most reasonable physicians in the 

same situation don’t know about those 

state guidelines.’’ Tr. 597, 599–600. To 

similar effect, in a document which 

appears to be Respondent’s post-hearing 

brief, Respondent writes that the 

Guidelines are not a statute or rule, but 

‘‘are simply a guide to help physicians.’’ 

Resp. Post-Hrng. Br., at 2. However, 

Respondent also argues that 

‘‘[a]dherence to [the] guidelines 

improves quality medical practice and 

helps distinguish legitimate practice 

from foul play.’’ Id. 

The Government does not, however, 

argue that the Guidelines have the force 

and effect of law. Rather, the Guidelines 

are—as Respondent himself 

recognizes—probative evidence of the 

standards of professional practice that 

are applicable in Georgia to the use of 

controlled substances for treating 

chronic pain.26 And as Dr. Hurd 

testified and documented in his report, 

measured against the Guidelines, 

Respondent’s prescribing practices were 

deficient in other respects. 

First, Step Two of the Guidelines 

instructs the physician to ‘‘[c]reate a 

treatment plan’’ and to ‘‘consider 

referrals to appropriate specialists, such 

as neurologists, orthopedists . . . 

addictionologists, and psychiatrists.’’ 

Step Two also instructs that ‘‘[t]he 

written treatment plan should state 

objectives that will be used to determine 

treatment success,’’ as well as whether 

‘‘any further diagnostic evaluations or 

treatments are planned.’’ Yet with the 

exception of a single patient to whom he 

offered a trigger point injection, the 

treatment plans documented in the 

patient charts, which were submitted for 

the record, provided only for the use of 

controlled substances. Moreover, Dr. 

Hurd found that Respondent never 

referred any of the patients whose files 

he reviewed to specialists, nor for other 

treatments such as physical therapy. 


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27 Indeed, DEA has encountered this practice in 

investigating numerous other rogue pain clinics. 

See Cynthia M. Cadet, 76 FR 19450, 19455 (2011); 

Jacobo Dreszer, 76 FR 19386, 19388 & n.8 (2011). 

Notably, this point was unchallenged by 

Dr. Warfield. 

Step Four of the Guidelines instructs 

the physician to ‘‘[r]eview the patient’s 

prescription records and discuss the 

patient’s chemical history before 

prescribing a controlled drug.’’ 

Continuing, Step Four states that ‘‘[i]f 

the patient is new or otherwise 

unknown to you, at a minimum obtain 

an oral drug history and medication 

allergies, and discuss chemical use and 

family chemical history with the patient 

and obtain old records which may 

include pharmacy records.’’ 

As to whether a physician is required 

to obtain a new patient’s old records 

prior to the initial prescribing of a 

controlled substance, the Guideline is 

not a model of clarity. In any event, it 

is unnecessary to decide whether 

Respondent breached the standard of 

care because he failed to obtain (or even 

attempt to obtain) the old records which 

purportedly existed for TFO Lawson 

(who made but two visits) because the 

evidence otherwise shows that he did 

breach the standard. As the evidence 

shows, TFO Vickery made four visits 

between August 22 and December 1, 

2011, and yet Respondent made no 

effort to obtain the records which 

purportedly existed for him. Most 

significantly, Dr. Hurd identified 

multiple patients who saw Respondent 

for a year or more and to whom he 

repeatedly prescribed controlled 

substances, and yet he did not obtain (or 

attempt to obtain) their records. 

Moreover, Respondent failed to obtain 

the records even when the patients 

claimed that they had previously been 

prescribed large doses of oxycodone, as 

well as other controlled substances such 

as Xanax, and were travelling long 

distances to see him. 

Dr. Warfield unconvincingly 

defended Respondent’s failure to obtain 

records. She asserted that ‘‘[m]ost 

physicians do not ask for old medical 

records’’ and that ‘‘[w]e don’t do that in 

our practice.’’ She also asserted that 

‘‘[t]here has to be a certain amount of 

trust between the patient and the 

physician’’ so that if a patient tells her 

she had ‘‘back surgery in 1995,’’ she 

doesn’t ‘‘need the medical records from 

that hospital where you say you had 

that surgery.’’ 

Dr. Hurd did not, however, testify, 

and the Government makes no 

contention, that Dr. Mintlow was 

required to obtain medical records of 

such vintage. Moreover, while Dr. 

Warfield may deem it unnecessary to 

obtain patient records of any sort, 

including those establishing what 

medications have been previously and 

recently prescribed to a patient, this 

does not establish what the standard of 

care requires in any State, let alone 

Georgia, where the Medical Board has 

concluded otherwise. See RX A (Georgia 

Guidelines Step 4). And even if it is her 

practice not to obtain records, Liberty 

nonetheless required its patients to 

execute a form authorizing the release of 

their medical records including 

prescription profiles, progress notes, 

hospitalization reports, and diagnostic 

reports, and yet did not even attempt to 

obtain those records (such as 

prescription profiles) which would be 

available even if a patient’s previous 

clinic had been shut down. See GX 27, 

at 18. So too, Respondent testified that 

the clinic he previously worked at 

would attempt to obtain prior records to 

verify the patients’ treatment histories. 

Tr. 343–44. As for why no attempts 

were made to obtain the records of the 

patients identified by Dr. Hurd, 

Respondent blamed this on Del Percio, 

even though he acknowledged that it 

was his responsibility. Id. at 344–45. 

Nor does this Agency dispute Dr. 

Warfield’s statement that there has to be 

a certain amount of trust between the 

patient and physician. However, when a 

patient represents that he/she has 

previously been prescribed large doses 

of powerful narcotics such as 

oxycodone 30mg (as well as other 

controlled substances such as 

benzodiazepines), which are highly 

abused and diverted, and may also have 

travelled a long distance bypassing 

numerous other potential treating 

physicians with no plausible 

explanation for doing so, there is ample 

reason to verify the patient’s claim. 

Indeed, requiring verification of a 

patient’s claims that he/she had 

previously received large doses of 

narcotics is fully supported by the 

CSA’s prescription requirement, one 

purpose of which is to prevent the 

recreational abuse of controlled 

substances by ‘‘bar[ring] doctors from 

peddling to patients who crave the 

drugs for those prohibited uses’’ or to 

sell the drugs to others who seek to 

abuse them. Gonzales v. Oregon, 546 

U.S. 243, 274 (2006) (citing Moore, 423 

U.S. 122, 135, 143 (1975)). 

There is additional evidence which 

supports the conclusion that 

Respondent prescribed controlled 

substances outside of the usual course 

of professional practice and lacked a 

legitimate medical purpose. In contrast 

to his failure to obtain the prior records 

of his patients, the evidence shows that 

Respondent would not see a patient 

unless that patient had already obtained 

an MRI. As found above, TFO Vickery 

testified that prior to his first visit, he 

twice attempted to see Respondent and 

was told by Del Percio that he needed 

an MRI before he could be seen by 

Respondent. Tr. 162–63. So too, TFO 

Manning attempted to see Respondent 

without an MRI and was turned down 

by Del Percio, who told him that 

Respondent was ‘‘not going to risk his 

license.’’ RX G, Disc N–51. 

Notably, there is no evidence that the 

undercovers were referred by another 

physician and thus would already have 

obtained their MRIs. So too, Dr. Hurd 

noted that in reviewing the patient files, 

he found ‘‘over and over again’’ that the 

patients were given an order by Liberty 

for an MRI before they were ever 

examined by Respondent. Tr. 514. 

Regarding this practice, Dr. Hurd 

explained that ‘‘[t]here is no reason to 

order an MRI . . . in the absence of an 

emergency, without examining a 

patient.’’ Id. This testimony was 

unchallenged by both Respondent and 

Dr. Warfield. 

In his Exceptions, Respondent argues 

that ‘‘[i]n Georgia[,] [an] MRI is not 

required to make a diagnosis.’’ Resp. 

Exceptions, at 6. That is undoubtedly 

true. Yet Respondent was obviously 

aware that the Liberty patients could not 

see him without having previously 

obtained an MRI. Respondent, however, 

offered no explanation as to why 

Liberty’s patients were required to have 

had an MRI done before he even 

examined them and determined that an 

MRI was warranted. Here, the evidence 

supports the inference that the MRIs 

were required—as Del Percio explained 

to TFO Manning—to justify 

Respondent’s issuance of unlawful 

controlled substance prescriptions in 

the event law enforcement or regulators 

became aware of Liberty and 

investigated it.27

Still more evidence that Respondent 

knowingly diverted controlled 

substances is provided by the 

undercover visits of TFO Vickery. On 

two occasions, Vickery attempted to 

purchase additional controlled 

substances for both himself and a friend 

and yet Respondent continued to 

prescribe controlled substances to him. 

More specifically, at Vickery’s second 

visit, after Respondent agreed to 

prescribe Opana to him, Vickery asked 

if he could also get some ‘‘15s,’’ a 

reference to oxycodone 15; while 

Respondent said no, Vickery then 

offered ‘‘to float’’ Respondent ‘‘a couple 

hundred bucks on the side.’’ While 

Respondent again said no, he 

nonetheless issued him prescriptions for 


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28 I also find entirely unpersuasive Dr. Warfield’s 

testimony justifying Respondent’s failure to 

document Vickery’s attempts to purchase additional 

drugs. In the absence of documentation of such an 

incident in the patient’s medical record, a doctor 

with a busy practice who merely kept a mental note 

could well fail to remember the incident. Moreover, 

as Dr. Hurd explained, one of the purposes of the 

medical record is to enable any subsequent treating 

physician to properly evaluate the patient, the 

effectiveness of previous treatments, and where a 

patient represents that they had previously been 

treated with controlled substances, the prior 

physician’s reasoning and the patient’s truthfulness. 

Tr. 451, 469. Furthermore, the Guidelines explain 

that a patient’s ‘‘history of substance abuse’’ should 

be documented in the medical record. RX A, at 2. 

Given that physicians are expected to assess the 

risks (and benefits) of various treatments (including 

the risk of misuse, abuse and diversion, see id. at 

3–4 (steps four, five and seven)), it is beyond 

dispute that documentation of a patient’s prior 

attempts to bribe a doctor and obtain drugs is 

essential information for any subsequent physician 

who treats the patient and considers prescribing 

controlled substances. 

29See also United States v. Joseph, 709 F.3d 

1082, 1104 (11th Cir. 2013) (holding physician 

‘‘acted without a legitimate medical purpose and 

outside the usual course of professional practice’’ 

where the evidence showed he ‘‘prescribed an 

inordinate amount of certain controlled substances, 

that he did so after conducting no physical 

examinations or only a cursory physical 

examination, [and] knew or should have known 

that his patients were misusing their 

prescriptions’’). 

90 Opana ER 40mg (oxymorphone), a 

drug which is also a schedule II 

controlled substance (and more potent 

than oxycodone), as well as 30 Xanax 

1mg. Moreover, upon receiving the 

prescriptions, Vickery complained that 

the previous Xanax prescriptions ‘‘did 

not last at all’’ and Respondent was 

‘‘being stingy.’’ 

Similarly, at the third visit, Vickery 

complained that the Opana ‘‘went pretty 

quickly’’ and asked for something for 

breakthrough pain. Moreover, Vickery 

then attempted to buy extra Xanax 

(actually showing him the cash), 

asserting that his buddy had asked him 

to see if Respondent would write him a 

prescription. While Respondent 

declined to write a Xanax prescription 

for Vickery’s purported buddy, he 

nonetheless increased the Xanax 

prescription to forty-five tablets. 

As found above, Dr. Hurd testified 

that these incidents should have 

resulted in the Respondent’s 

termination of Vickery as a patient. Dr. 

Warfield disputed this. While she 

acknowledged that they were red flags, 

she asserted that they did not constitute 

a contraindication to providing drugs 

‘‘to this patient for [his] pain.’’ Tr. 636. 

She then reasoned that: 

Does this patient understand that you can’t 

just walk into a doctor’s office and say, you 

know, I have a friend who needs some 

medication; here’s some money? Does the 

patient just totally not understand that that’s 

illegal. I don’t know the answer to that 

question. What I understand here is that 

[Respondent] was offered money and outright 

refused it, and I think that’s what’s important 

to me when I read these records. 

Id. 

Notwithstanding Dr. Warfield’s 

assertion, I conclude that patients are 

generally well familiar with why a 

prescription is required for certain 

drugs, especially controlled substances, 

and that a doctor must examine a 

patient before issuing prescription, and 

in any event, patients are also charged 

with knowledge of the law. Indeed, as 

found above, at each visit, Vickery was 

required to review and sign documents 

which warned that he could not sell, 

trade, or share medications, GX 27, at 10 

(initial visit); or that selling or diverting 

medication is illegal. Id. at 22 & 24 (2nd 

visit); 28 & 30 (3rd visit); 34 & 36 (4th 

visit). 

Beyond this, Respondent never 

testified that he continued to prescribe 

to Officer Vickery because he believed 

that this was simply a case of Vickery 

not knowing the law. Moreover, 

Vickery’s statement to Respondent— 

after telling Respondent he had $200 

and showing him the cash—that ‘‘I don’t 

know if you can do that,’’ hardly 

suggests a degree of naı ̈vete ́ on Vickery’s 

part as to the legal requirements for 

obtaining prescriptions. 

I also find unpersuasive Dr. Warfield’s 

further contention that because 

Respondent refused Vickery’s offer, this 

establishes that he was legitimately 

practicing medicine. Contrary to Dr. 

Warfield’s understanding, both the 

courts and the Agency have long 

recognized that the wink and a nod 

manner in which Respondent 

prescribed to Officer Vickery violates 

the CSA.28 See United States v. Moore, 

423 U.S. 122, 142–43 (1975); United 

States v. Hooker, 541 F.2d 300, 305 (1st 

Cir. 1976) (holding that where physician 

‘‘carried out little more than cursory 

physical examinations, if any, 

frequently neglected to inquire as to 

past medical history, and made little or 

no exploration of the type of problem a 

patient allegedly had, . . . the jury 

could reasonably have inferred that the 

minimal ‘professional’ procedures 

followed were designed only to give an 

appearance of propriety to appellant’s 

unlawful distributions’’).29

Furthermore, Dr. Warfield’s assertion 

that Respondent was engaged in the 

legitimate practice of medicine simply 

ignores TFO Vickery’s fourth visit. 

Indeed, in neither her report nor her 

testimony did Dr. Warfield even address 

Respondent’s prescribing to TFO 

Vickery at this visit, which resulted in 

prescriptions for 90 oxycodone 25mg, 

30 Xanax 1mg, and 30 Soma. 

However, as the evidence shows, 

Respondent knew that Vickery was not 

a legitimate pain patient as Vickery had 

been a week late for his appointment 

and did not have drugs in his system. 

Moreover, Respondent expressed his 

belief that Vickery was not having much 

pain and that he did not need anything 

other than Naproxen (a non-controlled 

drug) for his pain, prompting Vickery to 

change his pain level (and prompting 

laughter from Respondent), and then 

going so far as to claim that his ‘‘three’’ 

was somebody else’s ‘‘seven or eight.’’ 

Moreover, when Vickery explained 

that he did not even like Naproxen and 

that he liked the oxycodone and was 

used to taking it, Respondent remarked 

that Vickery was dependent on 

narcotics and laughed. Respondent then 

said that he would try to wean him 

down to avoid ‘‘withdrawal problems,’’ 

but then expressed doubt that Vickery 

‘‘would have that’’ as there was no 

oxycodone in his system, and laughed 

again. 

Indeed, at multiple points in the 

video, Vickery attempted to explain 

why he needed more drugs 

notwithstanding that he was a week late 

for the visit and his urine was clear, 

prompting laughter from Respondent. 

Having viewed the video, I reject 

Respondent’s testimony that he was 

laughing because ‘‘I smile all the time’’ 

or that his laughter was the result of his 

being ‘‘frustrated with’’ Vickery because 

he was trying to reduce Vickery’s 

medication and ‘‘it looked like [Vickery] 

was trying to change it to something 

different.’’ Tr. 372–73. 

Contrary to Respondent’s 

understanding, he—not Vickery—held 

the authority to prescribe controlled 

substances. Yet he continued to 

prescribe more controlled substances to 

Vickery, including more narcotics, 

notwithstanding the latter’s statements 

that ‘‘I like what I take’’ and that he was 

‘‘used to taking it,’’ prompting 

Respondent to acknowledge that ‘‘we’re 

talking about somewhat of a 

dependency here.’’ Indeed, Respondent 

even agreed to increase the quantity of 

the oxycodone 25mg from 60 to 90 

tablets after Vickery complained about 

the size of the prescription, and while 

he refused Vickery’s request for Lortab, 

he then added a prescription for Soma 

after Vickery asked for the drug. And 

following this, Vickery promised that he 

would ‘‘be in more pain next time.’’ 

Respondent thus knew that Vickery 

was not a legitimate pain patient. In 

short, as the ALJ found, this visit ‘‘can 

only be described as a negotiation over 


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30Soma is not a narcotic. However, the drug was 

controlled under the CSA because of its use by 

narcotic abusers to enhance the effects of narcotics. 

See Placement of Carisoprodol Into Schedule IV, 76 

FR 77330, 77356 (2011). 

31While the Board spelled out these red flags in 

its newsletter, the red flags presented by Liberty’s 

operations were so obvious that any physician who 

has practiced in legitimate settings would have 

quickly recognized the problematic nature of 

Liberty’s operations without the need for a 

newsletter, and any responsible physician—at least 

one holding a DEA registration—would have ceased 

practicing at such a clinic. Thus, I reject as 

incredible, Respondent’s contention that he was 

unfamiliar with the concept of red flags. Tr. 334. 

the quantity of narcotics30 Respondent 

would prescribe for Officer Vickery.’’ 

R.D. at 44. 

I therefore conclude that Respondent 

acted outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose when he 

issued prescriptions to TFO Vickery and 

Lawson, as well as the patients A.B., 

J.B., L.L., H.W., V.S., and T.W. 21 CFR 

1306.04(a). I further conclude that the 

Government’s evidence with respect to 

factors two and four establishes a prima 

facie showing that Respondent ‘‘has 

committed such acts as would render 

his registration . . . inconsistent with 

public interest.’’ 21 U.S.C. 824(a)(4). I 

further hold that Respondent’s 

prescribing violations are egregious and 

warrant the revocation of his 

registration. 

The ALJ also found that Respondent 

engaged in actionable misconduct 

because in December 2011, he became 

aware of a newsletter published by the 

Georgia Board which identified various 

characteristics of both pill mills and 

drug seeking patients. R.D. at 98. While 

Respondent admitted to having 

reviewed only the former portion, as the 

ALJ explained: 

The similarities between the clinical 

practice he was leading and the features 

reported in the newsletter that are common 

to pill mills were striking, and were 

undeniable. [Respondent] knew his patient 

base was largely from out of state, and that 

many patients travelled a great distance to be 

treated there. He knew the owners had no 

medical background and that no other 

medically-trained persons worked at the 

clinic. He knew his patients were asking for 

oxycodone by name and by dosage, and he 

was aware that they were presenting MRIs 

from a common source—and that they 

arrived with the MRIs in hand prior to an 

initial office visit. He knew also the clinic 

was operating on a cash basis, and that he 

was directly benefiting from a share of that 

cash in a three-way split. 

Id. at 99. The ALJ also noted that per the 

Board’s newsletter, Respondent could 

have ‘‘request[ed] an onsite ‘courtesy 

meeting’ with a Board agent,’’ if he had 

any questions about Liberty’s 

operations.31 R.D. at 100 (quoting GX 

39, at 7). 

Yet Respondent did not request a 

meeting with a Board agent and he 

continued to prescribe controlled 

substances for Liberty until April 2012, 

when a search warrant was executed at 

the clinic. GX 34, at 2 & 6. Moreover, Dr. 

Hurd’s report establishes that 

Respondent continued to unlawfully 

prescribe controlled substances during 

this period. While the ALJ discussed 

this evidence under factor five, it is 

more appropriately viewed as evidence 

probative of Respondent’s experience in 

dispensing controlled substances. It is 

also evidence which is probative of his 

compliance with the CSA’s prescription 

requirement as it refutes any suggestion 

that he was simply a physician who 

trusted his patients too much and was 

duped. 

Sanction 

Under Agency precedent, where, as 

here, ‘‘the Government has proved that 

a registrant has committed acts 

inconsistent with the public interest, a 

registrant must ‘present sufficient 

mitigating evidence to assure the 

Administrator that [he] can be entrusted 

with the responsibility carried by such 

a registration.’ ’’ Medicine ShoppeJonesborough, 73 FR 364, 387 (2008) 

(quoting Samuel S. Jackson, 72 FR 

23848, 23853 (2007) (quoting Leo R. 

Miller, 53 FR 21931, 21932 (1988))). 

‘‘Moreover, because ‘past performance is 

the best predictor of future 

performance,’ ALRA Labs, Inc. v. DEA, 

54 F.3d 450, 452 (7th Cir.1995), [DEA] 

has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[his] actions and demonstrate that [he] 

will not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Prince George Daniels, 60 FR 62884, 

62887 (1995). See also Hoxie v. DEA, 

419 F.3d at 483 (‘‘admitting fault’’ is 

‘‘properly consider[ed]’’ by DEA to be 

an ‘‘important factor[ ]’’ in the public 

interest determination). 

However, while a registrant must 

accept responsibility and demonstrate 

that he will not engage in future 

misconduct in order to establish that 

his/her continued registration is 

consistent with the public interest, DEA 

has repeatedly held these are not the 

only factors that are relevant in 

determining the appropriate sanction. 

See, e.g., Joseph Gaudio, 74 FR 10083, 

10094 (2009); Southwood 

Pharmaceuticals, Inc., 72 FR 36487, 

36504 (2007). Obviously, the 

egregiousness and extent of a 

registrant’s misconduct are significant 

factors in determining the appropriate 

sanction. See Jacobo Dreszer, 76 FR 

19386, 19387–88 (2011) (explaining that 

a respondent can ‘‘argue that even 

though the Government has made out a 

prima facie case, his conduct was not so 

egregious as to warrant revocation’’); 

Paul H. Volkman, 73 FR 30630, 30644 

(2008); see also Paul Weir Battershell, 

76 FR 44359, 44369 (2011) (imposing 

six-month suspension, noting that the 

evidence was not limited to security and 

recordkeeping violations found at first 

inspection and ‘‘manifested a disturbing 

pattern of indifference on the part of 

[r]espondent to his obligations as a 

registrant’’); Gregory D. Owens, 74 FR 

36751, 36757 n.22 (2009). 

Moreover, as I have noted in several 

cases, ‘‘‘[n]either Jackson, nor any other 

agency decision, holds . . . that the 

Agency cannot consider the deterrent 

value of a sanction in deciding whether 

a registration should be [suspended or] 

revoked.’ ’’ Gaudio, 74 FR at 10094 

(quoting Southwood, 72 FR at 36504 

(2007)); see also Robert Raymond 

Reppy, 76 FR 61154, 61158 (2011); 

Michael S. Moore, 76 FR 45867, 45868 

(2011). This is so, both with respect to 

the respondent in a particular case and 

the community of registrants. See 

Gaudio, 74 FR at 10095 (quoting 

Southwood, 71 FR at 36503). Cf. 

McCarthy v. SEC, 406 F.3d 179, 188–89 

(2d Cir. 2005) (upholding SEC’s express 

adoptions of ‘‘deterrence, both specific 

and general, as a component in 

analyzing the remedial efficacy of 

sanctions’’). 

Thus, in Gaudio, the Administrator 

‘‘explained that ‘even when a 

proceeding serves a remedial purpose, 

an administrative agency can properly 

consider the need to deter others from 

engaging in similar acts.’ ’’ 74 FR at 

10094 (quoting Southwood, 72 FR at 

36504) (citing Butz v. Glover Livestock 

Commission Co., Inc., 411 U.S. 182, 

187–88 (1973)); cf. McCarthy, 406 F.3d 

at 189 (‘‘Although general deterrence is 

not, by itself, sufficient justification for 

expulsion or suspension, we recognize 

that it may be considered as part of the 

overall remedial inquiry.’’); Paz 

Securities, Inc., et al. v. SEC, 494 F.3d 

1059, 1066 (D.C. Cir. 2007) (agreeing 

with McCarthy). In Gaudio, the 

Administrator further noted that the 

‘‘[c]onsideration of the deterrent effect 

of a potential sanction is supported by 

the CSA’s purpose of protecting the 

public interest, see 21 U.S.C. 801, and 

the broad grant of authority conveyed in 

the statutory text, which authorizes the 

[suspension or] revocation of a 


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32Unlike factors two (‘‘[t]he applicant’s 

experience in dispensing’’) and three (‘‘[t]he 

applicant’s conviction record’’), neither factor four 

(‘‘Compliance with applicable laws related to 

controlled substances’’) nor factor five (‘‘Such other 

conduct which may threaten public health and 

safety’’) contain the limiting words of ‘‘[t]he 

applicant.’’ As the Supreme Court has held, 

‘‘[w]here Congress includes particular language in 

one section of a statute but omits it in another 

section of the same Act, it is generally presumed 

that Congress acts intentionally and purposely in 

the disparate inclusion or exclusion.’’ Russello v. 

United States, 464 U.S. 16, 23 (1983). Thus, the text 

of factors four and five suggest that these factors are 

not limited to assessing the applicant’s compliance 

with applicable laws and whether he has engaged 

in ‘‘such other conduct,’’ but rather authorize the 

Agency to also consider the effect of a sanction on 

inducing compliance with federal law by other 

practitioners. 

33 In his Exceptions, Respondent lists some 

twenty-three things that he promises to do in the 

future, which he hopes ‘‘will eliminate many 

loopholes and help with the problem of drug 

diversion.’’ Exceptions, at 2. These include, inter 

alia, that he ‘‘will familiarize [him]self with all of 

Georgia’s rules, statute, law and regulations and 

follow them,’’ he ‘‘will follow the . . . Georgia 

medical board pain management guidelines,’’ ‘‘stay 

up-to-date with changes implemented by the 

Georgia medical board,’’ ‘‘follow the board[’]s 

advice from medical newsletters . . . regarding red 

flags and pill mills,’’ ‘‘investigate [the] patient’s past 

history and past drug history,’’ ‘‘perform additional 

physical exam techniques to help with the 

diagnosis,’’ ’’ pay close attention to urine drug test 

and perform the test myself,’’ ‘‘correlate physical 

exam with radiological findings,’’ ‘‘avoid seeing 

patients who travel long distance,’’ discharge any 

patient ‘‘offering any kind of bribe,’’ and ‘‘verify all 

past medical records’’ including patient’s MRIs. Id. 

Respondent’s list of promises is not evidence in 

the case, and thus, I give it no weight. In any event, 

even if he had testified as to these promises and 

been found credible, because he has failed to 

acknowledge his misconduct, I would still hold that 

he has not refuted the conclusion that his 

registration is inconsistent with the public interest. 

registration when a registrant ‘has 

committed such acts as would render 

[his] registration . . . inconsistent with 

the public interest,’ id. § 824(a)(4), and 

[which] specifically directs the Attorney 

General to consider [‘such other conduct 

which may threaten public health and 

safety,’ id. § 823(f)].’’ 74 FR at 10094 

(quoting Southwood, 72 FR at 36504).32

I conclude that Respondent has not 

accepted responsibility for his 

misconduct. Notably, at the hearing, 

Respondent continued to maintain that 

he had lawfully prescribed to TFOs 

Lawson and Vickery. Indeed, with 

respect to the latter, Respondent 

claimed that even his prescribing at the 

fourth visit was legitimate because ‘‘he 

[Vickery] still had pain.’’ Tr. 373. So 

too, with respect to the patients whose 

charts were reviewed by Dr. Hurd, 

Respondent failed to acknowledge that 

the prescriptions were unlawful. 

Moreover, when asked why he did not 

obtain prior records, Respondent 

explained that ‘‘I didn’t do it, because 

it was the understanding that Mark [Del 

Percio] was going to take care of those 

things.’’ Id. at 345. Respondent’s failure 

to acknowledge his misconduct is 

reason alone to find that he has not 

produced sufficient evidence to refute 

the Government’s showing that his 

registration is inconsistent with the 

public interest. 

Even had Respondent made a 

sufficient showing that he accepts 

responsibility for his misconduct, he 

has failed to produce sufficient evidence 

of remedial measures to refute the 

Government’s prima facie case. Indeed, 

the only evidence Respondent offered 

regarding remedial measures was his 

assertion that he would take a course 

(on two Saturday mornings) to become 

‘‘board certified in pain management.’’ 

Tr. 354. However, Respondent conceded 

that he ‘‘never got around to’’ doing it. 

Id. at 355–56.33

Moreover, I conclude that revocation 

of Respondent’s registration is 

warranted given the egregious nature of 

Respondent’s misconduct and the need 

to deter other registrants from using 

their registrations to distribute 

controlled substances to those persons 

who seek the drugs to either personally 

abuse them or sell them to others. Here, 

the evidence shows that Respondent 

knowingly diverted controlled 

substances by issuing prescriptions 

outside of the usual course of 

professional practice and which lacked 

a legitimate medical purpose to 

numerous persons. See David A. Ruben, 

78 FR 38363 (2013). Moreover, there is 

substantial evidence that Respondent 

prescribed controlled substances to 

multiple persons who obtained them for 

redistribution to others. 

Such conduct strikes at the CSA’s 

core purpose of preventing the abuse 

and diversion of controlled substances. 

See Jack A. Danton, 76 FR 60900, 60903 

(2011); George Mathew, 75 FR 66138 

(2010). Indeed, this Agency has revoked 

a practitioner’s registration upon proof 

of as few as two acts of intentional 

diversion and has further explained that 

proof of a single act of intentional 

diversion is sufficient to support the 

revocation of a registration. See MacKay, 

75 FR at 49977 (citing Krishna-Iyer, 74 

FR at 463 (citing Alan H. Olefsky, 57 FR 

928, 928–29 (1992))). 

While Respondent’s misconduct 

would be egregious if it had been 

confined to Officer Vickery, it was not. 

As found above, the Government’s 

Expert provided credible evidence that 

Respondent diverted controlled 

substances to at least six patients, over 

the course of a year or more. And even 

after Respondent became aware of the 

State Board’s newsletter which listed 

various red flags associated with pills 

mills that were also present at Liberty, 

he continued to write unlawful 

prescriptions to these patients until the 

clinic was shut down. 

I therefore conclude that the public 

interest necessitates that Respondent’s 

registration be revoked and that any 

pending application be denied. Given 

the egregiousness of his misconduct, I 

further conclude that the public interest 

requires that this Order be effective 

immediately. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824(a)(4) and 823(f), as 

well as 28 CFR 0.100(b) and 0.104, I 

order that DEA Certificate of 

Registration BM0288983, issued to 

Samuel Mintlow, M.D., be, and it hereby 

is, revoked. I further order that any 

application of Samuel Mintlow, M.D., to 

renew or modify the above registration, 

be, and it hereby is, denied. This Order 

is effective immediately. 

Dated: December 30, 2014. 

Thomas M. Harrigan, 

Deputy Administrator. 

[FR Doc. 2015–01219 Filed 1–22–15; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Comment Request for Information 

Collection for Tax Performance 

System, Extension Without Revision 

AGENCY: Employment and Training 

Administration (ETA), Labor. 

ACTION: Notice. 

SUMMARY: The U.S. Department of Labor 

(Department), as part of its continuing 

effort to reduce paperwork and 

respondent burden, conducts a 

preclearance consultation program to 

provide the general public and Federal 

agencies with an opportunity to 

comment on proposed and/or 

continuing collections of information in 

accordance with the Paperwork 

Reduction Act of 1995 (PRA95) (44 

U.S.C. 3506 (c) (2) (A)). This program 

helps to ensure that requested data can 

be provided in the desired format, 

reporting burden (time and financial 

resources) is minimized, collection 

instruments are clearly understood, and 

the impact of collection requirements on 

respondents can be properly assessed. 

Grants of funds that are made to states 

for administration of their employment 

security laws include funds for the 

establishment of a Quality Control Unit 

in each state in order for states to assess 

the quality of their unemployment 

insurance tax programs. States perform 

the assessment annually in accordance 


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