Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 17529 

2The State ALJ’s decision concluded that the 

State had proved nine different causes to discipline 

Respondent, several of which related to his abuse 

of controlled substances. In re Sandarg, Proposed 

Dec. at 44–46, No. DBC 2006–36 (2007). 

1On July 10, 2008, the Government served the 

Show Cause Order on Respondent. ALJ Ex. 3. 

this Agency has previously rejected 

similar arguments. 

On July 10, 2008, the ALJ granted the 

Government’s motion. ALJ at 6. The ALJ 

noted that no material facts were in 

dispute and that Respondent did not 

deny that he is currently not authorized 

under California law to handle 

controlled substances. Id. Noting that 

this Agency has consistently held that a 

practitioner may not maintain his 

registration if he lacks authority to 

handle controlled substances under the 

laws of the State in which he practices, 

the ALJ granted the motion and 

recommended that Respondent’s 

registration be revoked and that any 

pending applications to renew or 

modify his registration be denied. Id. 

Thereafter, the ALJ forwarded the record 

to me for final agency action. 

Having considered the entire record 

in this matter, I adopt the ALJ’s decision 

in its entirety. I find that Respondent 

holds DEA Certificate of Registration, 

BS6026529, which authorizes him to 

dispense controlled substances in 

schedules II through V at the registered 

location of 17655 Harvard Place, Suite 

F, Irvine, California. I further find that 

while the expiration date of the 

registration was February 28, 2007, 

Respondent submitted a timely renewal 

application and therefore his 

registration has remained in effect 

pending the issuance of this Final 

Order. See 5 U.S.C. 554(e). 

I further find, however, that on 

December 19, 2007, the Dental Board of 

California ordered that Respondent’s 

State Dental Certificate be revoked with 

an effective date of January 21, 2008.2

Moreover, while it has been more than 

seven months since Respondent’s 

challenge to the Dental Board’s 

proceeding was heard in State court, 

Respondent has submitted no evidence 

to the Agency that the Board’s 

revocation order has been set aside or 

stayed, and according to the Board’s 

Web site, Respondent’s Dental 

Certificate remains revoked. 

Under the Controlled Substances Act 

(CSA), a practitioner must be currently 

authorized to handle controlled 

substances in ‘‘the jurisdiction in which 

he practices’’ in order to maintain a 

DEA registration. See 21 U.S.C. 802(21) 

(‘‘[t]he term ‘practitioner’ means a 

physician * * * 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’’). See 

also id. § 823(f) (‘‘The Attorney General 

shall register practitioners * * * if the 

applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which he 

practices.’’). As these provisions make 

plain, possessing authority under State 

law to handle controlled substances is 

an essential condition for holding a DEA 

registration. 

Accordingly, DEA has held repeatedly 

that the CSA requires the revocation of 

a registration issued to a practitioner 

whose State license has been suspended 

or revoked. David Wang, 72 FR 54297, 

54298 (2007); Sheran Arden Yeates, 71 

FR 39130, 39131 (2006); Dominick A. 

Ricci, 58 FR 51104, 51105 (1993); Bobby 

Watts, 53 FR 11919, 11920 (1988). See 

also 21 U.S.C. 824(a)(3)(authorizing the 

revocation of a registration ‘‘upon a 

finding that the registrant * * * has had 

his State license or registration 

suspended [or] revoked * * * and is no 

longer authorized by State law to engage 

in the * * * distribution [or] dispensing 

of controlled substances’’). 

Here, there is no dispute over the 

material fact that Respondent’s 

California Dental Certificate has been 

revoked and that Respondent lacks 

authority under California law to 

dispense control substances. 

Respondent is therefore not entitled to 

maintain his DEA registration. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b) & 0.104, I order that 

DEA Certificate of Registration, 

BS6026529, issued to Scott Sandarg, 

D.D.S., be, and it hereby is, revoked. I 

further order that any pending 

application of Scott Sandarg, D.D.S., to 

renew or modify his registration, be, and 

it hereby is denied. This Order is 

effective May 15, 2009. 

Dated: April 3, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–8613 Filed 4–14–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 08–52] 

George C. Aycock, M.D.; Revocation of 

Registration 

On June 25, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to George C. Aycock, M.D. 

(Respondent), of Sumter, South 

Carolina. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, AA1071947, which 

authorizes him to dispense controlled 

substances as a practitioner, and the 

denial of any pending application to 

renew or modify the registration, on the 

grounds that: (1) Respondent’s state 

controlled substance registrations had 

been suspended, and thus he no longer 

has authority to handle controlled 

substances under South Carolina law; 

and (2) Respondent had committed acts 

inconsistent with the public interest. 

ALJ Ex. 1, at 1 (citing 21 U.S.C. 823(f) 

& 824(a)(4)). 

With respect to the second ground for 

the proceeding, the Show Cause Order 

alleged that Respondent had 

‘‘repeatedly failed to establish a proper 

physician-patient relationship, as 

required by state and federal law, and 

ha[d] authorized controlled substance[] 

prescriptions without a legitimate 

medical purpose and outside the usual 

course of professional practice, in 

violation of 21 CFR 1306.04(a), 21 

U.S.C. 841(a)(1), and S.C. Code Regs. 

81–28.’’ Id. More specifically, the Order 

alleged that Respondent issued 

controlled-substance prescriptions to 

persons he knew were exhibiting drugseeking behavior, abusing controlled 

substances, or selling their drugs to 

others. Id. The Order further alleged that 

Respondent failed to obtain appropriate 

medical histories, perform appropriate 

physical examinations, discuss 

treatments options and create a 

therapeutic plan as required by state 

law.1 Id. at 2. 

Thereafter, the Government sought 

the Immediate Suspension of 

Respondent’s registration based on 

information that on July 3, 2008, the 

State of South Carolina had reinstated 

Respondent’s controlled-substance 

registration, and that on the same day, 

Respondent had issued to a person, who 

had traveled 250 miles to see him, 

prescriptions for sixty tablets of 

Oxycontin (80 mg.), 90 tablets of Lortab 

(10 mg.), and 90 tablets of Xanax (1 

mg.). ALJ Ex. 2, at 1–2. The Order 

further alleged that this person had been 

receiving prescriptions from 

Respondent since July 2007, and that 

medical records which the Government 

had seized during the execution of a 

search warrant indicated that 

Respondent had not ‘‘perform[ed] an 

appropriate physical examination, 

ma[de] appropriate diagnoses or 


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2Therein, the ALJ noted that Respondent had 

violated 21 U.S.C. 844(a) ‘‘by asking someone else 

to pick up a controlled substance from [his] home.’’ 

ALJ at 53 n.82. This provision, however, renders it 

‘‘unlawful for any person knowingly or 

intentionally to possess a controlled substance 

unless such substance was obtained directly, or 

pursuant to a valid prescription or order, from a 

practitioner, while acting in the course of his 

professional practice, or except as otherwise 

authorized by this subchapter or subchapter II of 

this chapter.’’ 21 U.S.C. 844(a). It is not clear how 

Respondent violated the statute when the 

Government produced no evidence that he lacked 

a lawful prescription for the drug. Nor did the 

Government cite to any authority holding that the 

act it relies on constitutes a violation of the statute 

where a person has a lawful prescription. 

formulate[d] a therapeutic plan before 

prescribing high doses of opioids to this 

individual.’’ Id. at 2. 

Based on the above, I found that 

Respondent had authorized, and was 

‘‘continu[ing] to authorize, controlled 

substance[] prescriptions’’ which lacked 

a ‘‘legitimate medical purpose,’’ and 

were issued ‘‘outside the usual course of 

professional practice,’’ and that there 

was a ‘‘substantial likelihood that [he] 

will continue to allow the diversion of 

controlled substances.’’ Id. I further 

concluded that Respondent’s 

‘‘continued registration during the 

pendency of the[] proceedings would 

constitute an imminent danger to the 

public health or safety.’’ Id. 

Accordingly, on July 22, 2008, I 

immediately suspended Respondent’s 

registration. 

On or about July 10, 2008, 

Respondent was served with the Show 

Cause Order, and on July 25, 2008, 

Respondent was served with the 

Immediate Suspension Order. ALJ Ex. 3. 

On July 25, 2008, Respondent requested 

a hearing on the allegations, and the 

matter was placed on the docket of the 

Agency’s Administrative Law Judges 

(ALJ). ALJ Ex. 4. 

On December 10, 2008, a hearing was 

held in Arlington, Virginia. At the 

hearing, the Government called 

witnesses to testify and introduced 

various documents into evidence; 

Respondent introduced various 

documents and testified on his own 

behalf. Thereafter, the Government 

submitted a post-hearing brief. While 

Respondent sought and was granted an 

extension of the filing deadline, he 

failed to file a post-hearing brief. 

On January 21, 2009, the ALJ issued 

her recommended decision (ALJ). 

Therein, the ALJ generally ‘‘found the 

Government’s witnesses more credible 

than Respondent,’’ that the former 

‘‘appeared to be straightforward and 

candid, but Respondent appeared to 

tailor his testimony to suit his version 

of [the] events.’’ ALJ at 50. 

The ALJ also found that the various 

patient files were consistent with 

hearsay evidence as to what the patients 

had told Investigators regarding 

Respondent’s prescribing practices. Id. 

at 51. Moreover, the ALJ found credible 

the testimony of the Government’s 

expert as to the appropriate treatment of 

pain patients and the use of methadone 

to treat pain. Id. 

With respect to the public interest 

factors, the ALJ found that Respondent 

was authorized to handle controlled 

substances under South Carolina law 

and had not been convicted of any 

offense under either Federal or State law 

related to controlled substances. ALJ at 

51 & 53. As for Respondent’s experience 

in dispensing controlled substance, the 

ALJ specifically found that: 

Respondent saw patients in groups; that he 

did not conduct complete physical 

examinations of them or document complete 

medical histories; that he did not document 

the bases for his diagnoses, especially his 

diagnoses of anxiety; and that he did not 

document any treatment plans other than to 

list the medications he prescribed and note 

the date of the next visit. Respondent also 

failed to order any tests or refer patients to 

specialists for their underlying conditions. 

Id. at 52. 

The ALJ also found that Respondent 

inappropriately prescribed methadone 

to treat pain, and that ‘‘he ignored 

indications that at least some of the 

persons to whom he issued controlled 

substance prescriptions were abusing 

those medications.’’ Id. More 

specifically, the ALJ noted that ‘‘some of 

Respondent’s patients had obvious track 

marks * * * but Respondent’s only 

response to this testimony was that he 

took blood pressure and listened to 

patient’s lungs through their shirts, and 

thus did not see their arms.’’ Id. 

Relatedly, the ALJ found that 

Respondent ‘‘ignored obvious signs of 

drug-seeking behavior,’’ and that he 

‘‘increased the strength and/or 

quantities of the drugs he prescribed 

without explaining the increases in the 

patient charts and, in some instances, 

[did so] while simultaneously recording 

that the patients were doing well.’’ Id. 

at 52–53. Finally, the ALJ adopted the 

conclusion of the Government’s expert 

‘‘that Respondent issued prescriptions 

for other than legitimate medical 

reasons.’’ Id. at 53. The ALJ thus 

concluded that this factor supported ‘‘a 

finding that Respondent’s continued 

registration would be inconsistent with 

the public interest.’’ Id. 

Relatedly, the ALJ found that 

Respondent had failed to comply with 

the laws and regulations of South 

Carolina which require that a physician 

establish a valid doctor-patient 

relationship (and set forth various steps 

a physician must take) prior to 

prescribing a drug. Id. The ALJ thus 

concluded that Respondent violated 

both South Carolina law and the 

Controlled Substances Act’s 

prescription requirement, 21 CFR 

1306.04, and that this factor also 

supported ‘‘a finding that the 

Respondent’s continued registration 

would be inconsistent with the public 

interest.’’ Id. 

As for the fifth factor, the ALJ noted 

that while Respondent had introduced 

into evidence letters ‘‘attesting to his 

good character and professional 

competence,’’ the letters did not 

‘‘controvert the [Government’s] 

evidence.’’ Id. at 54. Finally, the ALJ 

found that Respondent had ‘‘refus[ed] to 

acknowledge his wrongdoing,’’ and that 

his refusal to do so ‘‘offers little hope 

* * * that he will act more responsibly 

in the future.’’ Id. 

The ALJ thus apparently concluded 

that Respondent’s continued registration 

‘‘would not be consistent with the 

public interest,’’ and recommended that 

I revoke his registration and deny any 

pending application to renew or modify 

his registration. Id. Neither party filed 

exceptions to the ALJ’s 

recommendation. Thereafter, the 

recorded was forwarded to me for final 

agency action. 

Having considered the entire record 

in this matter, I adopt the ALJ’s decision 

in its entirety with the exception of the 

first paragraph of footnote 82.2 More 

specifically, I conclude that 

Respondent’s experience in dispensing 

controlled substances and record of 

compliance with applicable laws amply 

demonstrate that he committed acts 

which render his registration 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. § 824(a)(4). I further conclude 

that Respondent failed to rebut the 

Government’s prima facie showing that 

his continued registration would be 

inconsistent with the public interest. 

Accordingly, I will order the revocation 

of Respondent’s registration and the 

denial of any pending application to 

renew or modify the registration. I make 

the following findings. 

Findings 

Respondent is a Medical Doctor who 

is currently licensed in the State of 

South Carolina to both practice 

medicine and handle controlled 

substances. ALJ Ex. 4, at 1. Respondent 

is also the holder of DEA Certificate of 

Registration, AA1071947, which prior to 

my issuance of the immediate 

suspension order, authorized him to 

dispense controlled substances in 

schedules II through V as a practitioner. 


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3Respondent registration was issued to him at the 

address of 295 Lakewood Drive, Sumter, South 

Carolina. GX 1, at 2. 

4Soma (carisoprodol) is not a controlled 

substance under federal law. It is, however, a highly 

abused drug which metabolizes into meprobamate, 

a schedule IV depressant. See Paul Volkman, 73 FR 

30630, 30636 n.21 (2008). The drug is frequently 

taken by drug abusers as part of a cocktail which 

also includes an opiate and benzodiazepine. See id. 

at 30638. 

5Respondent slightly reduced the number of 

tablets of the various drugs to reflect the fact that 

H.R. had returned after twenty-eight rather than 

thirty days. GX 51, at 4. 

GX 1, at 1. Respondent’s registration 

does not expire until June 30, 2009.3 Id. 

Respondent, who is board-certified in 

family practice, previously practiced 

medicine in Greeneville, Tennessee, in 

a practice which apparently was owned 

by another physician. Tr. 276. In his 

testimony, Respondent claimed that 

while he lived in Greeneville, he 

‘‘ticked off’’ a prominent person in the 

town and thereafter, became the target 

of ‘‘the vindictiveness of the town.’’ Id. 

at 278–79. As an example, Respondent 

testified that one day he was stopped for 

speeding. Id. at 279–80. Respondent did 

not, however, have his license on him 

and was arrested for driving without a 

license. Id. at 280. Following the 

incident, Respondent was also charged 

with resisting arrest; Respondent 

claimed, however, that he had done 

nothing to warrant the charge. Id. A jury 

apparently felt differently and convicted 

him of all three charges. Id. at 134. 

In November 2005, Respondent, who 

apparently was also having marital 

difficulties, was arrested a second time 

by the Greeneville police and charged 

with domestic assault on his then-wife 

and stepdaughter; Respondent was also 

charged with resisting arrest on this 

occasion. Id. at 133. At some point, 

Respondent, who was arrested a third 

time for missing a court appearance, 

pled guilty to the charges. Id. at 134. 

According to Respondent, at some 

point following his trial and conviction 

on the first set of charges, ‘‘rumors 

* * * were being started around town’’ 

that he was ‘‘selling drugs out of [his] 

office.’’ Id. at 282. Moreover, the doctor 

who owned the office where 

Respondent practiced died suddenly 

and the former’s son-in-law told 

Respondent to leave. Id. at 283. 

Respondent then moved to Sumter, 

South Carolina. Id. at 285. 

On November 21, 2006, Respondent 

was arrested in South Carolina and 

jailed in Sumter. Id. Respondent was 

eventually extradited back to Tennessee, 

and jailed in the Greene County Jail in 

Greeneville. Id. at 285–86. On or about 

February 13, 2007, Respondent was 

released from the jail. Id. 

While in jail, Respondent met several 

individuals who eventually became his 

‘‘patients’’ including W.G. and B.J.P.; 

both A.C. and B.C., who also became 

Respondent’s patients, were 

incarcerated in the jail during some 

portion of the period of his residence 

therein. Id. at 156, 174, 243. In his 

testimony, Respondent admitted that 

while he was in jail, he had met ‘‘three 

or four of’’ his patients. Id. at 294. 

While in jail, Respondent discussed 

with B.J.P. (who was his ‘‘pod mate’’), 

the latter’s ‘‘pain problems,’’ and on one 

occasion, Respondent looked at B.J.P.’s 

back. Id. at 157–58. Respondent agreed 

to write controlled-substance 

prescriptions for B.J.P. after they were 

released from jail. Id. at 156. The day 

after he was released, Respondent wrote 

a controlled substance prescription for 

B.J.P., and called in another prescription 

a month later. Id. at 156–57; 184–85. 

During an interview with 

investigators, Respondent initially 

denied writing prescriptions for B.J.P. 

Tr. 184. The Investigators then 

confronted Respondent with the 

prescription that he wrote for B.J.P. the 

day after his release from the jail. Id. 

Respondent then admitted he should 

not have written the prescription. Id. 

Following his release from jail, 

Respondent returned to South Carolina. 

Id. at 157. While Respondent lived 

approximately four-and-a-half to five 

hours away (by driving) from 

Greeneville, Tennessee, B.J.P. began 

traveling to Respondent’s home to 

obtain controlled-substance 

prescriptions from him. Id. According to 

the testimony of a DEA Investigator who 

interviewed B.J.P., B.J.P. would travel 

with a friend (M.H.), who also obtained 

controlled-substance prescriptions from 

Respondent. Id. at 158. 

B.J.P. also related to the Investigator 

that during the visits, he and his friend 

would talk with Respondent but did not 

undergo a physical examination. Id. at 

157–58. B.J.P. also told the Investigator 

that Lortab, a schedule III controlled 

substance which combines hydrocodone 

with acetaminophen, ‘‘was his drug of 

choice’’ and ‘‘what he received from’’ 

Respondent, id. at 159, but that 

Respondent had also given him 

prescriptions for Oxycontin, a schedule 

II controlled substance which contains 

oxycodone. Id. at 160. While Oxycontin 

was not B.J.P.’s ‘‘drug of choice,’’ he was 

able to sell it and pay for his trips to 

Respondent. Id. at 160. 

An Investigator also interviewed 

M.H., who had accompanied B.J.P. on 

the latter’s visits. Id. at 170–71. M.H. 

confirmed B.J.P.’s statement that when 

the two of them visited Respondent, 

they would talk with him in the latter’s 

living room, and that Respondent did 

not take their blood pressure, require 

them to disrobe, or conduct any type of 

physical examination ‘‘like [M.H.] had 

ever seen in a regular doctor’s office.’’ 

Id. at 171. After some discussion, 

Respondent would go upstairs and print 

out whatever prescriptions he was going 

to issue to them. Id. M.H. did not ‘‘know 

what his diagnosis was,’’ what his 

treatment plan was, and never 

‘‘receive[d] a referral for other 

treatment’’ or tests. Id. at 172. M.H. told 

investigators that he initially received 

prescriptions for schedule III drugs 

containing 10 mg. of hydrocodone, 

‘‘after a short period,’’ Respondent 

issued him prescriptions for Percocet or 

Oxycontin, both of which contain 

oxycodone. Id. at 171–72. 

B.J.P. and M.H. were not, however, 

the only ‘‘patients’’ who jointly saw 

Respondent. H.R. and A.R., who were 

married to each other, told investigators 

that Respondent had been 

recommended to them by two other 

persons who were seeing him, M.C. and 

P.G. Id. at 234. These four individuals 

traveled together to see Respondent at 

his residence. Id. 

Giving new meaning to the term 

‘‘group practice,’’ the four persons 

jointly met with Respondent in his 

living room. Id. H.R. related to the 

investigators that he became ‘‘rather 

embarrassed’’ when during the meeting, 

Respondent ‘‘asked him to unbutton his 

trousers so that [Respondent] could 

examine his back in front of the other 

three individuals in the same room.’’ Id. 

at 234–35. Thereafter, Respondent 

‘‘went upstairs.’’ Id. at 235. When 

Respondent returned he gave 

controlled-substance prescriptions to 

H.R. Id. Respondent charged H.R. $150 

at the initial visit and $100 at 

subsequent visits. Id. 

According to H.R.’s patient file, which 

was seized pursuant to a warrant, on 

July 24, 2007, Respondent diagnosed 

H.R. as having chronic lower back pain 

and anxiety, and issued him 

prescriptions for sixty tablets of 

Oxycontin (20 mg.), ninety tablets of 

Lortab (10 mg.), ninety tablets of Xanax 

(1 mg.), and ninety tablets of Soma 

(carisoprodol).4 GX 51, at 5. At H.R.’s 

next visit (August 21, 2007), Respondent 

increased the strength of the Oxycontin 

to forty milligrams, and issued 

additional prescriptions for Lortab, 

Xanax, and Soma; 5 Respondent issued 

additional prescriptions for these four 

drugs on September 20 and October 19, 

2007. See id. at 2 & 4. 

The patient files of M.C. (GX 46) and 

A.R. (GX 59) reflect that both 


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6The patient file for P.G. was not admitted into 

the record. 7The patient file for M.C. does not indicate the 

number of tablets he prescribed for the various 

drugs on June 26 and July 24, 2007; the file does, 

however, include the abbreviations for the dosing 

instructions on the progress note which is dated 

June 26. GX 46, at 7–8. The note indicates that M.C. 

was to take the Oxycontin b.i.d., or twice a day 

(thus suggesting that the prescription was for sixty 

tablets); the other drugs were to be taken t.i.d., or 

three times per day (thus suggesting that 

prescriptions were for ninety tablets). 

8The record does not establish whether the 

prescriptions were mailed to M.C. or were provided 

to M.C.’s acquaintances. 

9According to Lieutenant Crum of the 

Greeneville, Tennessee Police Department, during 

the execution of a search warrant at M.B.’s 

residence, the authorities found both ‘‘several 

pounds of marijuana and several pill bottles from 

Respondent.’’ Tr. 138. 

10While the notes pertaining to the initial visit 

are cut off where the date is indicated, the note for 

the October 26, 2007 visit, indicates that 

Respondent had ‘‘first seen [ S.M.] 25 days ago.’’ GX 

52, at 4. 

individuals obtained controlledsubstance prescriptions from 

Respondent on both July 24 and August 

21, 2007.6 See GX 46, at 7; GX 59, at 2, 

5–6. More specifically, at the July 24 

visit, Respondent issued to A.R., 

prescriptions for sixty tablets of 

Oxycontin (20 mg.), ninety tablets of 

Lortab (10 mg.), ninety tablets of Xanax 

(1 mg.), and ninety tablets of Soma. GX 

59, at 5. On the same date, Respondent 

issued to M.C. a refill of the 

prescriptions he had previously issued 

to him (on June 26) for Oxycontin (80 

mg.), Lortab (10 mg.), Xanax (1 mg.) and 

Soma.7 GX 46, at 7–8. 

According to the note dated August 

21, 2007, M.C. was ‘‘working [and] 

unable to come.’’ Id. at 7. The note 

nonetheless related that M.C. ‘‘is doing 

well [and] pain is stable,’’ and that 

Respondent issued him prescriptions for 

fifty-six tablets Oxycontin (80 mg.), 

eighty-four tablets of Lortab (10 mg.), 

eighty-four tablets of Xanax (1 mg.), and 

eighty-four tablets of Soma.8 Id. M.C. 

received prescriptions for the same 

drugs from Respondent on September 

15, October 8, November 5, and 

December 3, 2007. Id. at 2, 4–6. 

As for A.R., at the August 21 visit, 

Respondent prescribed fifty-six tablets 

of a stronger version of Oxycontin (40 

mg.), as well as eighty-four tablets of 

Lortab (10 mg.), Xanax (1 mg.), and 

Soma. GX 59, at 5. On September 20 and 

October 19, 2007, Respondent issued to 

A.R. prescriptions for the same four 

drugs. Id. at 2 & 4. 

On or about October 1, 2007, 

Respondent opened an office in Sumter 

and started seeing patients there. Tr. 

185. Prior to opening his office, 

Respondent sought to develop his 

patient base by placing ads in 

newspapers that were published in both 

Sumter and Greeneville, Tennessee. Id. 

at 229. Apparently, the ad placed in the 

Greeneville paper was far more 

successful than the one placed in the 

local paper as the overwhelming 

majority of the fifty-seven patients he 

had (as of the date the warrant was 

executed) were from Tennessee, and 

only three of them were from South 

Carolina. See Tr. 244–45 (testimony that 

Respondent told his nurse that ‘‘the 

patients were his previous patients from 

Tennessee, who came when [he] ran the 

ad in the newspaper’’); id. at 229, 180– 

81. Investigators were only able to 

identify two persons (J.C., and an 

unnamed woman), who he had 

previously treated when he practiced in 

Tennessee. Id. at 180–81. 

K.C., M.B., and S.M. were also among 

the patients interviewed by DEA 

Investigators who drove from the 

Greeneville, Tennessee area, to obtain 

prescriptions from Respondent. M.B., an 

admitted drug dealer, told Investigators 

that H.R. and A.R. had told him that if 

he saw Respondent, he could ‘‘get 

whatever you want from’’ him.9 Id. at 

164. M.B. accordingly visited 

Respondent and obtained controlledsubstance prescriptions from him. Id. 

During one of the visits, M.B. told 

Respondent that he had ‘‘just tried a 

friend’s [Oxycontin] and liked it.’’ Id. 

M.B. asked for an Oxycontin 

prescription and Respondent obliged. 

Id. M.B. further told investigators that 

when he saw Respondent ‘‘he didn’t 

have a normal exam,’’ and ‘‘wasn’t 

asked to disrobe.’’ Id. at 166. 

‘‘Basically,’’ M.B. ‘‘just talked to’’ 

Respondent. Id. 

Various prescription records show 

that Respondent issued to M.B. the 

following prescriptions for Oxycontin 

(20 mg.): sixty tablets on October 1, fifty 

tablets on October 26, and ninety tablets 

on November 27, 2007. See GX 64, at 26, 

56 & 130. Respondent also issued to 

M.B. the following prescriptions for 

Percocet (10/325): sixty tablets on both 

November 27 and December 28, 2007. 

See id. at 24 & 149. Finally, on January 

28, 2008, Respondent issued M.B. a 

prescription for 90 Klonopin 

(clonazepam 2 mg.). See id. at 268. 

S.M., who admitted to investigators 

that he was a lifelong drug abuser, had 

also purchased drugs from M.B., which 

the latter had obtained from 

Respondent. Tr. 138–39. According to 

both a DI and Lt. Crum, S.M. had visible 

track marks on his arms, which 

indicated that he was taking drugs 

intravenously (IV). Id. at 138 & 167. 

S.M. also told the DIs ‘‘that he would 

use any drugs that he could get his 

hands on,’’ and that he would shoot up 

every day but for the expense. Id. at 167. 

Moreover, S.M. had chronic obstructive 

pulmonary disorder and was being 

treated for this condition by a physician 

(Dr. R.L.) in Greene County. Id. at 190; 

GX 52, at 15. In April 2008, two DIs 

interviewed Dr. R.L. regarding S.M. Id. 

Dr. R.L. told the DIs that S.M. had 

admitted to him that he was an IV drug 

abuser, and in any event, S.M.’s track 

marks and gaunt appearance made it 

obvious that he was a drug abuser, and 

that one did not have to be a physician 

to recognize as much. Id.; see also id. at 

167 (Investigator testifying that S.M.’s 

track marks were ‘‘very obvious,’’ that 

his vein area was ‘‘discolored,’’ and 

there were ‘‘open sores on his arms 

where he shot up’’). Dr. R.L. stated that 

because of S.M.’s history of drug abuse, 

he would not prescribe controlled 

substances to him. Id. at 191. Moreover, 

Dr. R.L. had never been contacted by 

Respondent regarding S.M., and ‘‘had 

no idea’’ that S.M. was seeing 

Respondent. Id. 

S.M.’s patient file contains several 

documents which indicated that he was 

being treated by Dr. R.L. See GX 52, at 

15–16. Moreover, a report of a physical 

examination which was done on May 4, 

2007 when S.M. sought disability, noted 

that he ‘‘has used marijuana and IV 

drug[s], specifically cocaine.’’ Id. at 8. 

While the report also indicated that 

S.M.’s ‘‘last use of [illicit drugs] was 

about [three] years ago,’’ id., the report 

also noted that he had been in jail ‘‘for 

the last 17 months and * * * has been 

out about 2 or 3 months.’’ Id. at 7. 

Respondent first saw S.M. on, or 

about October 1, 2007.10 While S.M.’s 

file includes the report of a recent MRI 

of his right knee which indicated that he 

had tears of the lateral and medial 

menisci, chondromalacia, a ‘‘probable 

tear of the anterior cruciate ligament,’’ 

and a Baker’s cyst, S.M. had not been 

treated with controlled substances. Id. at 

5, 12–13. Respondent issued S.M. a 

prescription for sixty tablets of 

Oxycontin (20 mg.), with instructions to 

take one tablet twice a day, as well as 

for Motrin, a non-controlled drug. Id. at 

6. Respondent’s treatment plan was 

limited to prescribing these two drugs 

and a follow-up in thirty days. Id. 

On October 26, S.M. again saw 

Respondent. Id. at 4. The progress note 

indicates that S.M. had only one tablet 

of the Oxycontin left, even though only 

twenty-five days had passed since the 

earlier visit. Id. Moreover, S.M. told 

Respondent ‘‘[h]e also took someone 

else’s Roxicodone 30 mg, & says it really 

helped his pain.’’ Id. S.M. also 

complained of ‘‘nerves’’ and that he was 

‘‘not sleeping well.’’ Id. On the note, 


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11 In this note, Respondent also indicated that 

S.M. had been in a motor vehicle accident when he 

fell asleep while driving. Id. 

12According to prescriptions records, Respondent 

issued to S.M. additional prescriptions for ninety 

tablets of Roxicodone (15 mg.) on December 28, 

2007, and January 28, 2008; on the latter date, he 

also issued to S.M. prescriptions for sixty 

Oxycontin (20 mg.) and sixty Klonopin. See GX 64, 

at 151 & 228. 

13 K.C. testified that on her first trip to see 

Respondent she obtained a prescription for 

Percocet. Tr. 163. Various records show that on 

January 28, 2008, S.M., K.C., and M.B. all filled 

prescriptions issued by Respondent at the same 

pharmacy which was located in Columbia, South 

Carolina. See GX 64, at 228–29 (Rx to S.M. for 

Oxycontin 20 mg.), 266–67 (Rx to S.M. for 

Klonopin), 246–47 (Rx to K.C. for Percocet 10/325 

mg.), 268–69 (Rx to M.B. for Klonopin). According 

to the records, these four prescriptions were 

dispensed between 4:11 p.m. and 4:58 p.m. See id. 

Approximately one hour later, S.M. filled a 

prescription for Roxicodone at a CVS Pharmacy, 

which was also located in Columbia. See GX 64, at 

308–09. 

14W.G.’s file also indicated that he had a history 

of HTN (hypertension) and lipid problems. GX 7, 

at 3. 

15Avinza (morphine sulfate), a schedule II 

controlled substance. See 21 CFR 1308.12(b)(1). 

16 It also appears that W.G. saw Respondent on 

January 11, 2008, after he was released from jail, at 

which time he obtained additional prescriptions for 

Lortab and Valium. See GX 64, at 248–49, 250–51. 

Respondent indicated that S.M. had the 

following conditions: 1) Chronic knee 

pain—menisci tears, 2) osteoarthritis, 3) 

chronic anxiety, 4) COPD, and 5) 

Hepatitis C. Id. Respondent then issued 

S.M. prescriptions for fifty tablets of 

Oxycontin (20 mg.), sixty tablets of 

Roxicodone (15 mg.), and sixty tablets of 

Klonopin, and indicated that there 

would be a follow-up in ‘‘30 days.’’ Id.11

S.M. returned to Respondent on 

November 27. S.M. complained of knee 

pain and lower back pain/hip pain, 

which radiated down his leg. Id. at 2. He 

also complained that the ‘‘pain meds 

aren’t lasting long enough.’’ Id. At the 

visit, Respondent prescribed sixty 

tablets of Oxycontin (20 mg.), sixty 

tablets of Klonopin, increased the 

Roxicodone (15 mg.) prescription to 

ninety tablets ‘‘temporarily due to’’ the 

earlier car accident, and added a 

prescription for Soma. Id. Respondent 

also noted that there would be a followup in thirty days and if S.M.’s back was 

not better, he ‘‘will get MRI.’’ Id.12

On one occasion, S.M. had traveled to 

Respondent accompanied by M.B. and 

K.C. On the way to South Carolina, S.M. 

was having trouble breathing, and 

according to K.C. was exhibiting 

‘‘extreme respiratory distress.’’ Tr. 162; 

see also id. at 165 (M.B. told DI that 

S.M. ‘‘was having extreme difficulty 

breathing’’). Respondent nonetheless 

gave S.M. a prescription for Oxycontin, 

and apparently after S.M. filled the 

prescription at a pharmacy in South 

Carolina, he proceeded to inject the 

Oxycontin intravenously.13 Id. 

According to both K.C. and M.B., S.M. 

injected himself with Oxycontin three 

times on the trip back to Tennessee. Id. 

at 162–63, 165. After returning to 

Greeneville, S.M., who had a collapsed 

lung, was admitted to the intensive care 

unit of a local hospital. Id. at 165 & 168. 

Regarding his visit with Respondent 

on the day of this incident, S.M. 

acknowledged that he ‘‘was having great 

difficulty breathing.’’ Id. at 168. 

Respondent did not, however, mention 

S.M.’s condition or question him about 

it. Id. Respondent did not recommend 

that S.M. seek treatment for the 

condition, and after S.M. paid him in 

cash, issued him controlled-substance 

prescriptions. Tr. 168. 

DEA Investigators interviewed several 

other persons who had obtained 

prescriptions from Respondent and 

related similar information regarding his 

prescribing practices. W.G., who as 

found above, had met Respondent in the 

Greene County Jail, saw Respondent at 

his home on multiple occasions. Tr. 

174; GX 7. W.G., who at the time of the 

interview had been re-incarcerated, told 

Investigators that Respondent did not 

perform a physical examination on him, 

and he could not recall what conditions 

he was diagnosed with. Tr. 174. W.G. 

also told the Investigators that 

Respondent did not refer him to any 

specialist, and that his treatment was 

limited to taking medication. Id. 

W.G.’s patient file indicates that he 

first saw Respondent on May 21, 2007. 

GX 7, at 3. According to the file, W.G. 

had a history of lower back pain, and an 

MRI indicated that he had disc 

problems. Id. W.G.’s file did not, 

however, contain an MRI report.14 See 

GX 7. Moreover, under the portion for 

the physical exam, the notation for 

‘‘Back’’ is blank. Id. at 3. Respondent 

nonetheless diagnosed W.G. as having 

the following conditions: (1) Lumbar 

Disc Disease, (2) Hypertension, (3) 

Hyperlipidemia, and (4) Chronic 

Anxiety. Id. At this visit, Respondent 

prescribed to W.G. ninety tablets of 

Lortab (hydrocodone) (10 mg.), sixty 

tablets of Avinza (morphine sulfate) 15

(90 mg.), ninety tablets of Valium (1 

mg.) and ninety tablets of Soma. Id. At 

W.G.’s second visit, which occurred on 

June 26, 2007, Respondent re-issued 

prescriptions for each of these four 

drugs in the same quantities and 

strengths. Id. 

On July 24, 2007, W.G. again saw 

Respondent. Id. at 2. Respondent noted 

that W.G. ‘‘still has [Lower back pain]. 

Meds are helping but he took one of 

daughters [sic] Oxycontin & it helped 

better than Avinza.’’ Id. Respondent also 

noted that he observed ‘‘mild tenderness 

@ lower paravertebral area of lumbar 

spine,’’ and that ‘‘muscle spasm [is] 

present.’’ Id. Instead of renewing the 

Avinza prescription, Respondent 

prescribed sixty tablets of Oxycontin (80 

mg.). Id.; see also GX 64, at 3. 

Respondent also issued refills of the 

Lortab, Valium and Soma prescriptions. 

Id. 

W.G.’s fourth visit with Respondent 

occurred on August 21, 2007. Id. 

Respondent indicated that W.G. is 

‘‘doing well’’, but that he had a ‘‘muscle 

spasm lower back & mild tenderness @ 

paravertebral area.’’ Id. Respondent reissued prescriptions for Oxycontin (80 

mg.), Lortab (10 mg.), Valium (1 mg.), 

and Soma, although he decreased the 

quantities because W.G. had showed up 

two days early.16 Id. 

R.B. received at least five 

prescriptions for controlled substances 

from Respondent including three for 

Opana ER (oxymorphone 

hydrochloride), a schedule II controlled 

substance (21 CFR 1308.12(b)(1)), 

hydrocodone/acetaminophen (10/500 

mg.), and clonazepam (1 mg.). See GX 

64, at 110; GX 65, at 1–3. Moreover, at 

his visit of October 20, 2007, 

Respondent issued R.B. prescriptions 

for Opana ER, hydrocodone, 

clonazepam, and carisoprodol. See GX 

65, at 1–3. While R.B. told Investigators 

that he had ‘‘some pain problems,’’ he 

also stated that Respondent did not 

examine him, did not refer him to any 

specialists, and that he did not know 

‘‘how long he was going to be on the 

medications.’’ Tr. 173. Rather, R.B.’s 

understanding was ‘‘that if he paid, he 

got this many [drugs] for this month,’’ 

and that he was to ‘‘come back next 

month.’’ Id. 

The Expert Testimony 

Y. Eugene Mironer, M.D., testified for 

the Government as an expert witness in 

pain management. Dr. Mironer is a 1980 

graduate of the Moscow State Medical 

School, did a four-year residency in 

general surgery at Moscow Medical 

School Hospital, and practiced for five 

years as a general surgeon at the 

Municipal Hospital, Moscow, in the 

former Soviet Union. GX 5, at 1. 

Thereafter, Dr. Mironer emigrated to the 

United States, and has completed an 

internship in Internal Medicine at 

SUNY–St. John’s Hospital, Queens, NY; 

a three-year residency in Anesthesiology 

at the University of Massachusetts, 

Worcester, MA; and a fellowship in Pain 


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17 Dr. Mironer has also served as an Instructor in 

Anesthesia at the University of Massachusetts, and 

practiced as an anesthesiologist. GX 5, at 1. 

18According to Dr. Mironer, the Carolinas Center 

has fifteen to twenty thousand patients. Tr. 10. 

19 Dr. Mironer also testified that it is not the 

‘‘usual or typical way of conducting [medical] 

practice’’ to see multiple patients simultaneously, 

whether in one’s living room or an examination 

room. Tr. 90. 

20The contents of some of the files have been set 

forth above. 

Management at the Medical College of 

Virginia, Richmond,VA17 Id. 

Dr. Mironer is board certified in both 

Anesthesiology and Pain Management, 

and is the Managing Partner and 

Medical Director of the Carolinas Center 

for Advanced Management of Pain, 

which has numerous offices in South 

Carolina and North Carolina, where he 

has practiced since 1996.18 Tr. 10, GX 

5, at 1. Dr. Mironer is also a member of 

various medical organizations including 

the American Pain Society, the 

Southern Pain Society, the International 

Spinal Injection Society, the American 

Medical Association, and the North 

Carolina and South Carolina Medical 

Associations. Id. at 2. Dr. Mironer has 

published numerous articles, and 

written several chapters of a textbook, 

on pain management; he has also 

presented at several conferences. Id. at 

2–5; Tr. 12–13. Moreover, Dr. Mironer 

has continued to keep himself informed 

as to developments in the practice of 

pain management. Tr. at 13. 

Dr. Mironer was qualified as an expert 

and testified at length regarding the 

course of medical practice used to 

assess, diagnose and treat pain patients. 

Dr. Mironer testified that ninety-nine 

percent of his practice’s patients have 

been referred by either their primary 

care physician or a specialist, and that 

the patients either have their records 

sent prior to their appointment or hand 

carry them. Id. at 14. Before seeing a 

doctor, new patients are required to 

register and complete various forms and 

disclose what drugs they are currently 

taking and what pharmacies they are 

using. Id. 

Upon meeting the patient, the 

physician obtains a thorough medical 

history which includes questions about 

the pain’s location, origin, frequency, 

intensity, length of time it has been 

present, what aggravates it or eases it, 

and whether there are any other 

sensations that are related to it. Id. at 

15–16. The physician also asks the 

patient about tests that have been done; 

what treatments including medications 

have been previously, or are currently 

being, used; if the patient has allergies; 

and the patient’s surgeries. Id. at 16. The 

final part of the patient’s history 

including reviewing other medical 

problems that the patient may have 

including mental health conditions and 

treatments, past drug and alcohol abuse, 

and sleep disorders.19 Id. at 16–17. 

Next, the physician does ‘‘a full 

physical examination.’’ Id. at 17. In the 

case of a complaint of back pain (which 

was a common complaint among 

Respondent’s patients), this involves 

observing the patient’s gait, assessing 

his ability to walk on both his toes and 

heels, and checking the patient’s range 

of motion in his back both forwards/ 

backwards and from side to side. Id. at 

17–18. The patient’s back is then 

visually examined for abnormalities 

such as scoliosis and scars from surgery; 

this is followed by palpation of the back 

for tender spots or trigger points. Id. at 

18. 

The physician next examines the 

strength, sensory condition, and reflexes 

of the patient’s lower extremities. Id. 

Finally, the physician tests for Wadell’s 

non-organic signs; these tests are used to 

determine whether the patient’s pain 

has a psychological component. Id. at 

18–19. 

Based on the above, the physician 

arrives at his findings, formulates a 

treatment plan, and discusses both the 

findings and treatment plan with the 

patient. Id. at 20. As part of this process, 

the physician provides a detailed 

explanation as to why he/she is 

prescribing a particular drug (or no 

longer prescribing a drug the patient 

was previously taking), what procedures 

or treatments may help, and whether 

consultations with other specialists 

would be beneficial. Id. According Dr. 

Mironer, at least three out of four 

patients have not undergone enough 

diagnostic testing to determine the exact 

‘‘source of the[ir] pain and how to treat 

it.’’ Id. at 21. 

Dr. Mironer also stated that if a 

patient appeared at the initial visit 

without his/her records, he would 

prescribe a controlled substance—and 

do so only in a limited amount and in 

a low dose—only if the physical 

‘‘examination reveal[ed] some 

significant abnormalities.’’ Id. at 23. The 

patient would be told, however, to come 

back in a couple days with all of his 

records. Id. 

While Dr. Mironer testified that he 

accepts a patient’s word that he is ‘‘in 

pain,’’ he further stated that ‘‘not every 

pain is the same, and not every pain 

requires prescribing controlled 

substances,’’ some pain may not be so 

bad as to require ‘‘any serious 

intervention,’’ and that some pain may 

be of ‘‘a psychological origin’’ and 

‘‘should not be treated with 

medication.’’ Id. at 23–24. Dr. Mironer 

further noted that there are a variety of 

treatment modalities available for 

treating pain including physical 

therapy, psychological counseling, 

various types of injections, nerve blocks, 

and referrals to a spinal surgeon if shortterm treatments do not improve the 

patient’s pain level. Id. at 27–28. 

Dr. Mironer also explained that he 

does not rely on a patient’s recollection 

as to what drugs they are using because 

the patient may give mistaken 

information or mix up medications. Id. 

at 24. Moreover, in prescribing 

controlled substances, the amount of 

drug taken by the patient should be 

titrated. Id. at 34. Specifically, if 

treatment with a controlled substance is 

warranted and the patient is not 

currently taking a controlled substance, 

the patient is started on a lower strength 

drug such as hydrocodone of either 5 or 

7.5 mg. strength, to be taken two to three 

times a day. Id. at 36. However, if the 

condition is severe, the dosing may be 

increased to ‘‘every four to six hours.’’ 

Id. at 37. Moreover, some patients may 

be started on oxycodone. Id. at 36 & 38. 

Dr. Mironer further testified that he 

had reviewed the files Respondent 

maintained on fifty-seven of his 

patients, which were provided to him 

by Investigators with the DEA 

Columbia, S.C. Office. Id. at 40–41. The 

Government also introduced thirteen of 

the files into evidence and specifically 

questioned Dr. Mironer regarding what 

the records showed with respect to 

Respondent’s prescribing practices.20

With respect to his review of all of the 

patient files, Dr. Mironer noted that 

‘‘practically all [of the] patients were 

self-referred and not from the local 

area,’’ Tr. 44, and that fifty-four of the 

fifty-seven patients ‘‘were coming from 

Tennessee,’’ that this ‘‘is usually not the 

case unless they are coming for some 

unique procedure,’’ id. at 45, and that 

Respondent was not providing any 

unique procedures. Id. at 46. With 

respect to the out-of-state patients, Dr. 

Mironer observed that ‘‘it is difficult to 

provide pain management for patients 

that live far away, because your ability 

to control what they take and what they 

receive and how they do it [is] 

significantly diminished with the 

distance’’ they live from the practice. Id. 

Dr. Mironer explained that when 

patients live out of state, ‘‘there is much 

less communication [with] the 

pharmacist,’’ a patient may be 

‘‘receiv[ing] the same medication from 

you and their family doctor,’’ or even 

going to another pain clinic. Id. at 47. 

Dr. Mironer also noted that in his 

practice, at least ninety-nine percent of 


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21 Dr. Mironer also observed that while patients 

who engage in drug-seeking behavior may indeed 

have legitimate medical conditions that cause pain 

and require treatment, these patients must be more 

closely monitored through pill counts, urine tests, 

and pharmacy checks. Id. at 87. 

22 Dr. Mironer explained that giving high doses of 

opioids can cause constipation, depression, 

hormonal release and in the event of an overdose, 

respiratory depression and even death. Tr. 52–53. 

Moreover, because patients develop tolerance, ‘‘one 

would try to increase the [dosing] from small 

amounts * * * very slowly, because after you reach 

a certain amount of medicine you are not getting 

much more benefit at all.’’ Id. at 53. 

the patients are referred to it by another 

physician, whether a specialist or a 

family doctor. Id. at 47–48. According to 

Dr. Mironer, in dealing with selfreferred patients, it is ‘‘much more 

difficult to get the information from 

them and verify what kind of treatment 

they [have] received and are receiving 

currently.’’ Id.; see also id. at 64 

(discussing importance of 

communicating with a patient’s other 

physicians to ensure that he/she is not 

receiving similar drugs from other 

physicians). 

Relatedly, Dr. Mironer subsequently 

explained that he did not find ‘‘any’’ 

evidence that Respondent was 

attempting to control his patients’ use of 

controlled substances through such 

standard practices as ‘‘random urine 

toxicology screening to make sure that 

the patient is taking the medications 

that [are] prescribed, and not taking 

other controlled substances or street 

drugs,’’ and/or calling the patients to 

come to the office for pill counts. Id. at 

63–64. Dr. Mironer also noted that pill 

counts were not possible, because most 

of the patients lived out of state.21 Id. at 

64–65. 

Dr. Mironer further opined that 

‘‘practically all of the patients [were] 

receiving an inadequate physical 

examination, as far as the areas of their 

pain is concerned,’’ that ‘‘practically all, 

if not all, receive[d] a prescription of 

controlled substances, but no specific 

treatment plan ha[d] been made.’’ Id. at 

48. Moreover, ‘‘practically all the 

patients received opioids without any 

specific discernible plan,’’ and a ‘‘very 

significant number of the patients were 

receiving very high doses of opioids.’’ 22

Id. at 49. 

Furthermore, the files contained ‘‘no 

indications that there were any attempts 

to control or verify or check the use of 

controlled substances, such as urine 

toxicology screening or pharmacy 

check[s,] or check[ing] with the other 

treating physicians to see what kind of 

medication [the patients] have been 

prescribed, which is one of the typical 

steps that pain clinics * * * tak[e] to’’ 

monitor their patients. Id. Dr. Mironer 

also explained that he found that ‘‘very 

significant numbers [of patients] were 

diagnosed with anxiety without 

indication of how that diagnosis was 

made, and they were treated with the 

same medications for anxiety.’’ Id. at 

48–49. 

Dr. Mironer further noted that in the 

‘‘vast majority of the cases’’ in which 

Respondent prescribed controlled 

substances for lower back pain, the 

physical examination was limited to 

determining whether the patient had 

tenderness. Tr. 54. Moreover, ‘‘most of 

the time’’ Respondent’s patient files 

lacked ‘‘enough diagnostic or physical 

examination to confirm the severity of 

[the] disease,’’ and ‘‘[n]o additional tests 

were done or planned that [would] 

help[] with the determination.’’ Id. at 

122–23. Dr. Mironer also rejected the 

notion that additional tests should not 

be performed simply because a patient 

lacks insurance, noting that certain tests 

such as x-ray and CT scan are 

considerably cheaper than an MRI, and 

in any case, while a CT scan ‘‘is still 

expensive,’’ its cost is ‘‘on par’’ with the 

cost of filling multiple prescriptions. Id. 

at 126–27. 

Accordingly to Dr. Mironer, 

Respondent’s exam involved ‘‘just 

basically press[ing] on the area, and if 

the patient says ouch, that is 

tenderness.’’ Id. at 54. Dr. Mironer 

reiterated that to properly examine a 

patient’s back, ‘‘[t]here should be a 

range of motion examination of [the] 

musculoskeletal, nervous system, 

including the reflexes, strength of the 

muscles, sensitivity to touch, the 

possibility of abnormality in the 

sympathetic system which you check by 

examining the look of the skin, the 

possibility of what is called allodenia, 

or extremely painful response to a nonpainful stimulus, and so on.’’ Id. 

With respect to Respondent’s 

diagnosis of anxiety in various patients 

and prescribing of benzodiazepines, Dr. 

Mironer explained that ‘‘there was 

nothing in the notes indicating as to 

why this diagnosis appears.’’ Id. at 55. 

According to Dr. Mironer, there should 

be ‘‘something in [the] description of 

[the] encounter with the patient [which] 

should tell us something. For example, 

the patient looks anxious and jittery, 

constantly shaking, sweating, 

complaining of constant feeling of 

anxiety running all the time, or panic 

attacks or what not. There was nothing 

like that described in any of the patients 

most of the time. * * * ’’ Id. 

Dr. Mironer also stated that ‘‘it is a 

common practice in pain clinics to do 

psychological testing * * * for a 

majority of the patients, because it is 

well known that a significant number of 

patients with chronic pain are suffering 

from psychological conditions,’’ and the 

‘‘prevalence of psychological conditions 

among pain patients is higher than in 

general populations.’’ Id. at 56. 

Moreover, among chronic pain patients, 

depression ‘‘is more prevalent’’ than 

anxiety. Id. 

Dr. Mironer further observed that 

‘‘benzodiazepines were the medications 

that were prescribed in most of the cases 

I reviewed.’’ Id. at 57. According to Dr. 

Mironer, they are ‘‘usually not the first 

line of defense for anxiety,’’ and are 

‘‘not the best medication to prescribe for 

patients who are on opioids as well.’’ Id. 

Dr. Mironer explained that prescribing 

benzodiazepines with opioids increases 

the risk ‘‘of opioid overdose or 

significant side effect[s] such as 

drowsiness.’’ Id. at 58. Dr. Mironer also 

noted that most of his patients that are 

being treated for chronic anxiety ‘‘are 

being treated without benzodiazepines 

or other controlled substances.’’ Id. at 

61. 

Next, Dr. Mironer noted that in most 

of the files, after Respondent issued 

prescriptions, ‘‘the only plan of care was 

to come back in one month.’’ Id. at 62. 

Dr. Mironer opined ‘‘[t]hat this is fairly 

unusual,’’ because for ‘‘the majority of 

the patients, prescribing medication’’ is 

‘‘just a starting point to get them into 

other modalities of treatment, either 

testing or consulting and so on.’’ Id. Dr. 

Mironer further explained that 

practically none of the files included ‘‘a 

plan of treatment saying I will start the 

patient on hydrocodone and muscle 

relaxants, obtain nerve conduction 

studies, obtain new MRIs, consider 

doing this injection or sending him to 

physical therapy or neurosurgical 

consult. * * * [T]here were no plans for 

treatment other than a follow up 

report.’’ Id. 

Dr. Mironer also noted that there were 

‘‘quite a few patients’’ whose ‘‘dose of 

opioids was increased after the patient 

asked for an increase.’’ Id. at 63. Dr. 

Mironer found that this was ‘‘very 

significant’’ because there was no 

‘‘specific plan of treatment,’’ and the 

patients ‘‘were just on this free flow 

regimen where they received controlled 

substances, and whenever they wanted 

an increase they were getting an 

increase most of the time.’’ Id. 

According to Dr. Mironer, this is ‘‘not 

the regular way of practicing pain 

medicine.’’ Id. Dr. Mironer also noted 

that there were instances in which 

patients had told Respondent that they 

had obtained a controlled substances 

from others or patients had taken their 

drug ‘‘more often’’ than was prescribed. 

Id. 


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23W.G.’s patient file is discussed above. 

24 Dr. Mironer also found that Respondent had 

mistakenly diagnosed D.F. as having tension 

headaches, when her headaches were related to a 

brain cyst. Tr. 73. While this finding might be 

evidence of medical malpractice, it is not relevant 

to the issues in this proceeding. 

Under the heading of ‘‘Meds,’’ a progress note 

dated June 26, 2007 contained in D.F.’s file 

indicates that she was taking Lortab (10 mg.), Xanax 

(1 mg.), Oxycontin (80 mg.) and Soma. GX 13, at 

8. Yet, as Dr. Mironer testified, the patient file does 

not contain any records related to D.F.’s being 

prescribed these drugs by other physicians. Tr. 73. 

25Respondent also changed F.M.’s muscle 

relaxant from Soma to Zanaflex. GX 26, at 2. 

Patient Specific Evidence 

Next, Dr. Mironer testified regarding 

Respondent’s prescribing to specific 

patients. With respect to W.G. (GX 7), 

who met with Respondent while they 

were both in jail, and to whom 

Respondent prescribed three controlled 

substances including morphine, 

hydrocodone, Valium, as well as 

carisoprodol at the first visit (as well as 

at three subsequent visits), Dr. Mironer 

opined that Respondent prescribed 

inappropriate amounts of opioids and 

that ‘‘[t]here were no reasons obvious 

from the chart for prescribing 

benzodiazepines.’’ 23 Tr. 67. Dr. Mironer 

further noted that the ‘‘physical 

examination was incomplete,’’ and that 

Respondent’s diagnoses, which 

included both lumbar disc disease and 

chronic anxiety (see GX 7, at 2) ‘‘had no 

support with tests or as a result of’’ the 

physical examination. Id. at 67–68. 

Moreover, Respondent did not create a 

treatment plan. Id. at 68. Based on all of 

these findings, Dr. Mironer concluded 

that the prescriptions Respondent 

issued to W.G. ‘‘were not issued for 

medical purposes.’’ Id. 

Respondent diagnosed D.F. (GX 13) 

with mild degenerative disc disease in 

the lumbar region, facet joint 

arthropathy, chronic muscle tension 

headaches, and chronic anxiety, and 

issued her prescriptions for sixty tablets 

of Oxycontin (80 mg), as well as ninety 

tablet prescriptions for Lortab (10 mg.), 

Xanax (1 mg.) and Soma. According to 

Dr. Mironer, a radiologist who reviewed 

a CT scan of D.F.’s lumbar spine had 

found that she had ‘‘very mild 

degenerative changes’’ of her lumbar 

spine, but that ‘‘significant discomfort 

or radiculopathy would not be expected 

from these findings.’’ Tr. 73, GX 13, at 

9. Moreover, while D.F.’s file contained 

multiple radiology reports, it did not 

contain any records of prior treatments 

she had received. See GX 13; Tr. 73. 

Dr. Mironer noted that ‘‘there was 

again an inadequate examination of the 

back, and the patient was diagnosed 

with chronic anxiety without any’’ 

findings to support the diagnosis. Tr. 73, 

see also GX 13, at 7–8.24 Dr. Mironer 

also found that D.F. had ‘‘received an 

extremely high dose of opioids together 

with Xanax and a muscle relaxant 

[Soma], and no treatment plan, and the 

same prescribing continue[d] for 

durations [sic] that was in the chart.’’ 

Tr. 73. Dr. Mironer thus concluded that 

the prescriptions were ‘‘not issued for 

legitimate medical purposes.’’ Id. 

On March 19, 2007, Respondent 

diagnosed D.M. as having five 

conditions: (1) Degenerative Lumbar 

Disc Disease with Radiculopathy, (2) 

Bilateral Lumbar Facet Joint 

Arthropathy, (3) S 1 Nerve Root 

Compression, (4) L Sciatica, and (5) 

Chronic Anxiety. GX 25, at 8. D.M.’s file 

contained the reports of two MRIs, 

which were done on May 12, 2001, and 

May 29, 2003. Id. at 9–10. At this visit, 

Respondent issued D.M. prescriptions 

for Avinza 90 mg (morphine sulfate), 

Lortab (10 mg), Xanax (1 mg.), and 

Soma. Id. at 8. Respondent issued to 

D.M. new prescriptions for these drugs 

on April 16, May 29, June 29; at the July 

28 visit, Respondent noted that D.M. 

‘‘would like to [change] Avinza to 

Oxycontin due to expense,’’ and issued 

her prescriptions for Oxycontin (40 

mg.), as well as Lortab (10 mg.), Xanax 

(1 mg.), and Soma. Id. at 6–7. On August 

25, September 20, October 18, and 

November 15, Respondent issued D. M. 

new prescriptions for the latter four 

drugs. Id. at 2, 4, 5, & 6. 

According to Dr. Mironer, the findings 

of D.M.’s most recent MRI, which was 

then four years old, were not ‘‘very 

significant.’’ Tr. 74. Dr. Mironer opined 

that Respondent’s ‘‘examination of the 

back was again inadequate.’’ Id. 

Relatedly, Dr. Mironer noted that 

Respondent had recorded the result of 

D.M.’s straight leg raise as negative, 

which suggested that ‘‘a lack of 

radiculopathy, or nerve pinching of 

[the] sciatica,’’ yet he had diagnosed 

D.M. with radiculopathy. Id. Moreover, 

Respondent had diagnosed D.M. as 

having chronic anxiety without noting 

any findings to support the diagnosis. 

Id. 

Dr. Mironer observed that Respondent 

had prescribed a ‘‘high dose of opioid, 

with benzodiazepine and no treatment 

plan.’’ Id. Moreover, on the ‘‘very next 

visit,’’ Respondent increased ‘‘the 

amount of opioids,’’ and at a later visit, 

Respondent had ‘‘changed from one 

medication to the other at [D.M’s] 

request.’’ Id. Finally, Respondent 

continued to prescribe ‘‘for another five 

months without any treatment, testing 

or additional plans.’’ Id. at 74–75. Dr. 

Mironer thus concluded that ‘‘the 

prescription[s] of controlled substances 

were not issued for legitimate medical 

purpose in this case as well.’’ Id. at 75. 

With respect to F.M. (GX 26), Dr. 

Mironer noted that while he complained 

‘‘of low back pain,’’ his patient file 

included records which indicated that 

he had been treated at a pain clinic and 

had been ‘‘discharged just about ten 

days prior to’’ his initial visit with 

Respondent. Tr. 75; see also GX 26, at 

6–17. More specifically, F.M.’s file 

included a letter which indicated that 

during a September 6, 2007 office visit 

at the pain clinic, he had undergone a 

random urinalysis. GX 26, at 6. While 

F.M. had been prescribed Dilaudid 

(hydromorphone), a schedule II 

controlled substance, he tested negative 

for the drug when he ‘‘should have been 

positive.’’ Id. According to the letter, 

this was a breech of F.M.’s pain contract 

with the clinic; the clinic also 

recommended that F.M. go to a 

chemical dependency treatment center. 

Id. 

At the initial visit (on October 18, 

2007), Respondent noted that F.M. had 

been discharged based on the negative 

drug screen for Dilaudid; Respondent 

also diagnosed him as having 

approximately nine conditions 

including degenerative disk disease of 

the lumbar region, right SI joint pain, 

muscle spasm in his back, and chronic 

anxiety. GX 26, at 4–5. The progress 

note indicates, however, that 

Respondent performed a physical 

examination which included taking 

vitals signs, a neurological examination 

and various other findings. Id. at 4–5. 

Respondent issued him prescriptions for 

ninety tablets of Roxicodone 30 mg., 

sixty tablets of MS Contin 30 mg. 

(another schedule II drug), ninety tablets 

of Xanax (.5 mg), and sixty tablets of 

Soma. Id. Respondent also noted that he 

had discussed a narcotic contract with 

F.M. and told him that ‘‘any breech will 

[result in] immediate dismissal,’’ and 

that F.M. should consider injections of 

both his lower back and SI joint area. Id. 

F.M. also saw Respondent on 

November 15, 2007. Id. at 2. At this 

visit, F.M. complained that he was ‘‘still 

having pain’’ and that ‘‘the MS Contin 

causes some nausea.’’ Id. F.M. reported, 

however, that ‘‘the Roxicodone helps 

his pain the best.’’ Id. Respondent noted 

he needed to make changes in F.M.’s 

medications; while Respondent 

renewed F.M.’s prescriptions for 

Roxicodone (30 mg.) and Xanax (.5 mg.), 

he also increased the strength of the MS 

Contin to 60 mg.25

Regarding Respondent’s prescribing to 

F.M., Dr. Mironer observed that 

notwithstanding that ‘‘a discharge letter 

* * * recommended treatment with 


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26The record does not establish what the notation 

signified. 

27Respondent also apparently checked L.C.’s 

lungs and cardiovascular system. GX 41, at 8. 

[an] addictionologist,’’ F.M. ‘‘was given 

a high dose prescription of 

benzodiazepine and a muscle relaxant 

with no plans for treatment or no plans 

for further strict control of his use of 

control substances, such as mediation 

check, pharmacy check, or urine 

toxicology screening.’’ Tr. 75–76. Dr. 

Mironer further noted that while F.M. 

had complained that the MS Contin 

caused nausea, Respondent had issued 

him a new prescription which doubled 

the strength of the MS Contin. Tr. 76. 

Finally, Dr. Mironer noted that 

Respondent had not made a ‘‘new 

plan.’’ Id. Dr. Mironer thus concluded 

that the prescriptions were ‘‘not issued 

for legitimate medical purposes.’’ Id. 

J.M.’s first visit with Respondent was 

April 16, 2007. GX 27, at 14. At the 

visit, J.M. complained of lower back 

pain, hip pain, and neck pain. Id. In the 

progress note, Respondent also 

indicated that J.M. had undergone an 

MRI on November 11, 2003, which 

showed that she had two herniated 

discs (L4–5 & L5–S1), and either an Xray or an MRI (two years ago) of her 

cervical spine which showed that she 

had two ruptured discs (C1–2 & C2–3). 

Id. Moreover, Respondent noted that 

J.M. had seen another physician until 

October 2006. Id. J.M.’s file does not, 

however, contain reports for either 

radiological exam or any records from 

the physician who previously treated 

her. See generally GX 27. 

Respondent’s physical exam noted 

that J.M.’s lungs were clear and 

included a notation for a finding with 

respect to her cardiovascular system.26

With respect to J.M.’s back, Respondent 

indicated ‘‘nontender x over [right] 

buttocks,’’ and with respect to her neck, 

Respondent indicated ‘‘tender [with] 

spasm over [right] trapezius [and] 

periscapular area.’’ Id. Respondent 

diagnosed J.M. with cervical disc 

disease, lumbar disc disease, and 

chronic anxiety, although there were no 

findings to support the latter. Id. 

Respondent’s treatment plan for J.M. 

was to issue her prescriptions for sixty 

tablets of each of the following: Avinza 

(morphine sulfate 120 mg.), Roxicodone 

(30 mg.), and Xanax, as well as ninety 

tablets of Soma, with a follow-up in 

thirty days. Id. At J.M.’s next visit, 

Respondent issued her new 

prescriptions for each of the above drugs 

(although he reduced the number of 

pills by one day’s worth). Id. at 13. 

At J.M.’s third visit (June 6, 2007), 

Respondent noted that J.M. ‘‘wants to 

[change] Avinza to MS Contin due to 

cost.’’ Respondent obliged and issued 

J.M. a prescription for ninety tablets of 

MS Contin (60 mg.); Respondent also 

issued J.M. new prescriptions for sixty 

tablets of both Roxicodone (30 mg.) and 

Xanax (1 mg.), as well as ninety Soma. 

Id. 

On the next visit (July 1, 2007), 

Respondent noted that the MS Contin 

was not helping her as well as the 

Avinza. Id. at 12. He also noted that 

J.M.’s hip pain was ‘‘much worse 

internally [with] very limited 

movement’’ and that she was ‘‘still 

tender over [left] trapezius.’’ Id. 

Respondent then issued new 

prescriptions for the same three 

controlled substances (as well as the 

Soma) and increased the quantity of MS 

Contin to 120 tablets. Id. Respondent reissued the same four prescriptions on 

August 3, September 1 and 29, October 

24, and November 20. Id. at 7, 9–11. 

Throughout the entire course of his 

treating J.M., her plan of care was 

limited to prescribing medication and 

follow-up visits. See generally GX 27. 

Based on his review of J.M.’s record, 

Dr. Mironer concluded that 

Respondent’s physical examination was 

‘‘inadequate,’’ that she had ‘‘received 

exceedingly high doses of opioids,’’ as 

well as a ‘‘benzodiazepine for anxiety’’ 

with no findings to support the 

diagnosis. Tr. 76. Dr. Mironer further 

noted that ‘‘no treatment plan was 

given,’’ and that the ‘‘prescribing was 

continued for more than half a year with 

no additional treatments, testing, or 

additional plans for the future.’’ Id. Dr. 

Mironer thus opined that ‘‘the 

prescriptions of controlled substances in 

[J.M’s] case were * * * not issued for 

legitimate medical purposes.’’ Id. at 77. 

L.C.’s initially visited Respondent on 

March 19, 2007, and complained of 

lower back pain. GX 41, at 8. L.C.’s file 

includes a copy of a report for an MRI 

which had been done on November 29, 

2006; the Radiologist’s report indicates 

that the MRI had found ‘‘only minimal 

disk disease’’ of her lumbar spine, and 

that her disks ‘‘are actually still within 

normal limits.’’ Id. at 12. While the 

report also noted that there were 

‘‘degenerative changes * * * within the 

facet joints,’’ it indicated that ‘‘these 

should not be the cause of a 

radiculopathy.’’ Id. 

The note for L.C.’s first visit listed 

three doctors she had previously seen, 

yet her patient file did not contain any 

records from these doctors. Id. at 8. 

According to the history section, L.C. 

also had radiculopathy in her left leg to 

the back of her knee, and that her pain 

level was ‘‘8.’’ Id. According to the 

physical examination section, 

Respondent found tender the 

paravertebral area of L.C.’s lower back. 

Id. Respondent also apparently did a 

straight leg raise test on L.C; while 

findings appear to have been noted, the 

significance of the findings is not clear 

on the record.27

Respondent diagnosed L.C. as having 

four conditions: 1) Facet joint 

arthropathy, 2) mild lumbar disc 

disease, 3) chronic anxiety, and 4) 

chronic lower back pain with left 

radiculopathy. Id. Respondent then 

issued her prescriptions for Avinza (90 

mg.), Lortab (10 mg.), Xanax (1 mg.), and 

Soma, with a follow-up in thirty days. 

Id. Respondent re-issued the 

prescriptions for the same drugs on 

April 16 (although he increased the 

dosing of the Avinza from twice to three 

times a day), and on May 29; on the 

latter date, Respondent did so without 

even requiring L.C. to appear. Id. at 7. 

On June 29, L.C. returned to 

Respondent and requested that he 

prescribe Oxycontin instead of Avinza 

due to the latter’s cost. Id. Respondent 

agreed and issued her a prescription for 

ninety tablets of Oxycontin (40 mg); 

Respondent also issued L.C. 

prescriptions for sixty tablets of Lortab 

(10 mg.), as well as ninety tablets of 

both Xanax and Soma. Id. Respondent 

issued new prescriptions for these drugs 

on or about July 28, August 25 (based 

on a telephone call), September 27, 

October 29, and November 30, 2007. Id. 

at 2, 4–6. 

While L.C.’s patient file spans eight 

months of visits, it contains no 

indication that she was ever subjected to 

a urine drug screen or pill count. See 

generally id. at 2–8. Moreover, 

Respondent’s plan of treatment for L.C. 

was invariably to prescribe controlled 

substances (and Soma); Respondent did 

not recommend any other treatment 

modalities to L.C. Id. 

With respect to L.C., Dr. Mironer 

observed that ‘‘[t]he only available 

record was an MRI, which was 

appropriate for [her] age,’’ and that at 

the first visit, she had ‘‘received a very 

high amount of opioids on this visit, 

with [a] benzodiazepine for anxiety that 

was again not documented.’’ Tr. 77. Dr. 

Mironer further noted that at L.C.’s 

‘‘next visit,’’ Respondent had increased 

her medications by ‘‘[thirty] percent,’’ 

that he ‘‘later changed to a different pain 

medication,’’ and that the prescribing 

‘‘continued for * * * seven, eight 

months with no control of intake of the 

medication and no plans for a future 

treatment.’’ Id. Dr. Mironer thus 

concluded that the prescriptions 

Respondent issued to L.C. were ‘‘not 


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issued for legitimate medical purposes.’’ 

Id. at 77–78. 

M.C., a patient who participated in 

Respondent’s ‘‘group practice,’’ received 

prescriptions for Oxycontin (80 mg.), 

Lortab (10 mg.), Xanax (1 mg.) and Soma 

on June 26, July 24, August 21, 

September 15, October 8, November 5, 

and December 3, 2007. See generally GX 

46. According to the progress note for 

his initial visit, M.C. reported that he 

was currently taking all four of the 

above drugs yet the file contains no 

records from other physicians. Id. 

Respondent performed a physical 

examination of his lungs, 

cardiovascular, and back. Id. at 8. With 

respect to M.C.’s back, Respondent 

noted that it was tender at both the 

‘‘lower & upper paravertebral areas of 

[the] lumbar region,’’ as well as ‘‘at [the] 

lower [right] scapula area.’’ Id. 

Respondent diagnosed M.C. as having 

degenerative disc disease in the lumbar 

region, facet joint arthropathy, and 

anxiety. Id. There is, however, no 

indication of any finding that would 

support a diagnosis of anxiety. Id. 

Dr. Mironer noted with respect to 

M.C. that ‘‘[n]o records [were] available 

at the time of the visit,’’ and that 

Respondent’s examination of his back 

‘‘was not adequate.’’ Tr. 78. Dr. Mironer 

further observed that Respondent had 

prescribed ‘‘an extremely high dose 

opioids * * * with benzodiazepines for 

anxiety that was not documented, and 

muscle relaxants,’’ and that ‘‘the pain 

prescribing continued for * * * half a 

year with again no’’ plans for other 

treatment modalities. Id. Dr. Mironer 

thus concluded that Respondent’s 

prescribing of controlled substances to 

M.C. ‘‘was not for [a] legitimate medical 

purpose.’’ Id. at 79. 

H.R., another of Respondent’s group 

practice patients, first saw Respondent 

on July 24, 2007, complaining of lower 

back pain, but ‘‘no radiation.’’ GX 51, at 

5. H.R.’s file included two radiology 

reports, one for an MRI of his hips 

(dated June 19, 2006), and another for 

an apparent X-ray examination of his 

lumbar spine (dated March 28, 2006). 

Id. at 6–7. With respect to the latter 

exam, the Radiologist found that 

‘‘degenerative disc disease is present at 

the lumbar spine with mild 

degenerative levoscoliosis.’’ Id. at 7. 

In the physical exam section of the 

progress note, Respondent indicated 

that H.R.’s back was ‘‘tender [bilateral] 

paravertebral areas of lumbar spine,’’ 

and that he was ‘‘able to bend to 90’’ 

degrees. Id. at 5. Respondent further 

noted that H.R.’s straight leg raise was 

negative. Id. 

According to the progress note, 

Respondent diagnosed H.R. as having 

chronic lower back pain caused by 

degenerative disc disease, and chronic 

anxiety. Id. Here again, the progress 

note contains no findings that support a 

diagnosis for anxiety. Id. As found 

above, Respondent issued H.R. 

prescriptions for sixty tablets of 

Oxycontin (20 mg.), ninety tablets of 

both Lortab (10 mg.) and Xanax (1 mg.), 

and ninety tablets of Soma. Id. 

At the next visit (Aug. 21, 2007), H.R. 

reported that he was still having lower 

back pain. Id. at 4. Respondent doubled 

the strength of the Oxycontin he 

prescribed to 40 mg. and issued new 

prescriptions for Lortab, Xanax and 

Soma. Id. Respondent re-issued the 

same four prescriptions on two 

additional occasions. Id. at 2 & 4. 

Moreover, there is no indication in 

H.R.’s file that Respondent ever 

recommended alternative treatment 

modalities. 

H.R.’s file also contained a Tennessee 

Board of Pharmacy Patient Rx History 

Report (dated November 26, 2007), 

which showed that H.R. had been 

receiving prescriptions for alprazolam 

(Xanax) and hydrocodone from multiple 

doctors and had obtained several of the 

prescriptions during the same period in 

which he was obtaining prescriptions 

from Respondent. Id. at 8–9. There is, 

however, no evidence that Respondent 

prescribed to H.R. after he received the 

report. 

Dr. Mironer observed that ‘‘the only 

available record at the time of [H.R.’s] 

visit was [an] age-appropriate X-ray of 

the spine with some mild to moderate 

degenerative changes, and [a] normal Xray of the hip.’’ Tr. 79. Dr. Mironer also 

noted that Respondent’s initial 

prescribing was for ‘‘a fairly high dose 

of opioid,’’ and that the benzodiazepine 

prescriptions ‘‘for anxiety * * * was 

undocumented.’’ Id. Dr. Mironer further 

noted that ‘‘[d]uring [the] next visit the 

amount of opioids that was fairly high 

already was increased more than fifty 

percent, and that [the] prescribing 

continued for a couple more months.’’ 

Id. Here again, Dr. Mironer concluded 

that Respondent’s prescribing of 

controlled substance lacked a 

‘‘legitimate medical purpose.’’ Id. at 79– 

80. 

A.R., who was H.R’s wife, also visited 

Respondent on July 24, 2004, and 

complained of lower back pain and pain 

radiating down her left leg to her ankle. 

GX 59. A.R.’s file included the reports 

of two radiological examinations (one of 

her cervical spine and one of her lumbar 

spine), which were then more than three 

and a half years old. Id. at 7–9. While 

the report on A.R.’s cervical spine noted 

the presence of a paravertebral muscle 

spasm, it was otherwise 

‘‘unremarkable’’; similarly, while the 

report on A.R.’s lumbar spine found 

‘‘disc desiccation at the level of L5/S1, 

with mild posterior and left paracentral 

disc bulging * * * the remaining 

portions of the exam are unremarkable.’’ 

Id. at 7 & 9. 

According to the progress note, 

Respondent examined A.R. and found 

tenderness at the bilateral paravertebral 

region of her lower back and a muscle 

spasm. Id. at 6. Respondent also found 

tenderness over A.R.’s left buttocks in 

the region of the sciatic nerve, that A.R. 

was able to bend over to ninety degrees, 

and that the straight leg raise was 

negative bilateral. Id. Respondent thus 

diagnosed A.R. as having chronic lower 

back pain caused by degenerative disc 

disease, chronic anxiety, and chronic 

left sciatica, and issued her 

prescriptions for sixty Oxycontin (20 

mg.), ninety Lortab (10 mg.), ninety 

Xanax (1mg.), ninety Soma, with a 

follow-up in thirty days. Id. at 5–6. 

At the next visit (August 21), A.R 

complained that she still had lower back 

pain despite her taking Oxycontin (20 

mg.). Id. at 5. Respondent thus doubled 

the strength of the Oxycontin to 40 mg. 

and also re-issued the prescriptions for 

Lortab (10 mg), Xanax, and Soma. Id. 

Respondent also issued prescriptions for 

the same four drugs on September 20 

and October 19. Id. at 2 & 4. At no point 

in his treatment of A.R. did Respondent 

recommend alternative treatment 

modalities. 

At each of her four visits, Respondent 

issued the exact same prescriptions to 

A.R.—including drug, drug strength, 

and dosing—as he did for her husband, 

H.R. Moreover, at their August 21 visit, 

Respondent doubled the strength of the 

Oxycontin he prescribed to both H.R. 

and A.R. Compare id. at 5, with GX 51, 

at 4. 

As Dr. Mironer observed, ‘‘the 

treatment of both Mr. and Mrs. [R] was 

exactly the same as far as medication 

and increases and the dates.’’ Tr. 80. Dr. 

Mironer further noted that while an MRI 

indicated that A.R. had a bulging disk, 

it ‘‘may be a very benign condition.’’ Id. 

Moreover, A.R. had ‘‘received a fairly 

high amount of opioids on her first visit 

with [a] benzodiazepine for anxiety that 

was not documented.’’ Id. Dr. Mironer 

also observed that Respondent had 

increased the amount of opiates at the 

second visit, and that A.R. continued to 

receive the medication for two more 

months thereafter. Id. Dr. Mironer thus 

concluded that the prescriptions 

Respondent issued to A.R. lacked a 

legitimate medical purpose. Id. 

C.H. first saw Respondent on 

November 8, 2007, and apparently 

complained of back and shoulder pain. 


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28While the notation gives a date of ‘‘1/8/07,’’ the 

date appears to be cut off and obviously could not 

have been written ten months before the document 

was printed out and a month before C.H. 

commenced treatment with the clinic. See GX 19, 

at 10. I thus find that the notation was made on 

November 8, 2007, the date the document was 

printed out. 

29 Dr. Mironer further noted that ‘‘[i]f a patient 

finishes his treatment at a methadone clinic, we 

require usually a psychiatric or psychological 

evaluation * * * to make sure * * * that the 

patient * * * is a good candidate to try to treat 

* * * with chronic opioids. We will try to avoid 

it as much as we can. However, if we will prescribe 

for this patient medication, it probably won’t be 

methadone, and it for sure won’t be a high dose of 

methadone once a day.’’ Id. at 81–82. Dr. Mironer 

also explained that ‘‘it is a well documented 

knowledge, and even the PDR [Physicians’ Desk 

Reference] refers to the duration of pain action and 

advises to not prescribe methadone for pain.’’ Id. at 

83. See also id. at 111 (‘‘If the patient is treated for 

addiction and cured, then he shouldn’t be on 

methadone any more. If he still required daily doses 

of methadone, it means that he is still in treatment 

for addiction’’ and the prescribing should ‘‘be done 

only by the methadone clinic’’). 

The Government also introduced the patient file 

of K.M., who complained of chronic lower back 

pain. GX 24, at 2. K.M.’s chart contains but a single 

progress note, which appears to be incomplete as 

indicated by the notation ‘‘OVER’’ at the bottom of 

the page, but the continuation page is not in the 

record. Id. Nor does the note appear to document 

the full scope of the physical examination as it 

makes no mention of Respondent’s findings with 

respect to K.M.’s back, even though with respect to 

every other patient, Respondent made some finding 

with respect to a patient’s back even if his exams 

were inadequate. Id. Moreover, the file is missing 

Respondent’s assessment and does not clearly 

indicate what drugs he may have prescribed and the 

plan of treatment; while the file contains a 

document which lists various medications, the 

record does not establish the significance of this 

document. Nor did the Government submit other 

records which show the prescriptions Respondent 

issued to K.M. 

GX 19, at 3. According to the progress 

note, C.H. had been undergoing 

treatment by a clinic for opiate 

dependence for the last ten months and 

was taking a ‘‘maintenance dose of 

methadone hcl 80 mg daily.’’ Id. at 3. 

C.H. further reported to Respondent that 

methadone ‘‘controls his pain better 

than hydrocodone,’’ which he had 

become addicted to. Id. 

C.H. patient’s file included numerous 

records from the methadone clinic 

including a printout of C.H.’s ‘‘Patient 

Drug Screen Results,’’ which indicated 

that it was printed out on the morning 

of his first visit with Respondent. Id. at 

16. This document showed that C.H. 

had been given a urine drug screen the 

day before; the document also contained 

a handwritten notation stating that 

‘‘[C.H.] is currently medicating @ 80 mg. 

daily.’’ 28 Id. There is no indication in 

C.H.’s file that Respondent contacted 

the clinic to determine whether C.H. 

was still being treated by it. 

Dr. Mironer did not take issue with 

the physical exam that Respondent 

performed on C.H. or his diagnosis of 

pain. Tr. 81–82. He noted, however, that 

Respondent had prescribed to C.H. an 

eighty milligram dose of methadone to 

be taken once a day. Id. at 81. More 

specifically, Dr. Mironer explained that 

‘‘methadone is prescribed once a day for 

treatment of addiction because of the 

length of methadone being in the body 

makes it different’’ as the drug remains 

in the body ‘‘exceed[ing] two days.’’ Id. 

50. In contrast, the analgesic effect of 

methadone ‘‘is only six to eight hours,’’ 

and thus the ‘‘prescribing [of] 

methadone for pain should be in the 

form of [a] low dose for three, four, five 

times a day, rather than a high dose 

once a day.’’ Id. 

According to Dr. Mironer, ‘‘[w]hen 

you prescribe a high dose once a day, 

you are not providing pain relief, but 

you are providing a certain amount of 

opioid in the body for a long duration 

that is usually what is needed for [the] 

treatment of addiction.’’ Id. Moreover, if 

methadone is used to treat pain, the 

dosing ‘‘should be started at 5 to 10 

milligrams three or four times a day,’’ 

and titrated to a total dosage of sixty 

milligrams a day. Id. Finally, because 

methadone is ‘‘so long acting,’’ a patient 

‘‘may eventually accumulate [a] 

significant amount of the drug,’’ thus 

risking ‘‘respiratory depression and the 

possibility of death.’’ Id. at 52. Dr. 

Mironer therefore concluded that 

Respondent’s prescribing of methadone 

to C.H. was not issued for ‘‘appropriate 

medical purposes.’’ 29 Id. at 81. 

Finally, with respect to S.M. (GX 52), 

whose history of medical problems and 

substance abuse, as well as his road trip 

(accompanied by K.C. and M.B.) to visit 

Respondent was discussed above, Dr. 

Mironer acknowledged that the records 

‘‘showed significant disease of the knee 

joint.’’ Tr. 83. Dr. Mironer further noted, 

however, that the available records 

showed that S.M had a ‘‘history of street 

drug use’’ including marijuana and IV 

cocaine use, and ‘‘long term 

incarceration.’’ Id. 

Dr. Mironer noted that Respondent 

issued S.M. a prescription for Oxycontin 

(20 mg.) at the initial visit, that he did 

not create any treatment plan other than 

to prescribe drugs, and that he did not 

attempt control S.M.’s use of his 

medication. Id. at 83–84. Dr. Mironer 

also noted that S.M. had run ‘‘out of his 

medication early,’’ and had ‘‘received 

additional controlled substance 

[Roxicodone 30 mg.] from a third 

person.’’ Id. at 84. Dr. Mironer then 

observed that ‘‘[d]espite all that, [S.M.] 

received [a] renewal of his prescription 

for Oxycontin, and actually received an 

additional prescription for the same 

medicine [Roxicodone] that he received 

from the third person.’’ Id. Finally, Dr. 

Mironer again explained that while 

Respondent had increased the amount 

of controlled substances he prescribed, 

no plan was made for alternative 

treatments or to control S.M.’s ‘‘intake 

of medication.’’ Id. Dr. Mironer thus 

concluded that Respondent’s 

prescribing of controlled substances 

lacked a legitimate medical purpose. Id. 

Respondent’s Cross-Examination of Dr. 

Mironer 

On cross-examination, Respondent 

did not challenge Dr. Mironer’s 

testimony with respect to a specific 

patient. Respondent did, however, 

inquire into the basis for Dr. Mironer’s 

more general observations about both 

Respondent’s patient pool and the 

practice of pain management. 

For example, with regard to the ‘‘large 

number’’ of patients who were traveling 

from Greeneville, Tennessee to see 

Respondent, Dr. Mironer testified that 

while patients may go out of state ‘‘to 

obtain a consult or to have a procedure 

done,’’ it is ‘‘fairly unusual’’ for patients 

‘‘to go a long distance on a monthly 

basis just to see a family doctor or * * * 

a pain doctor who is prescribing their 

medication.’’ Id. at 96. Moreover, when 

asked by Respondent whether he would 

still require studies and MRIs for a 

chronic pain patient who has been 

treated with medications for a five to 

ten-year period, Dr. Mironer testified 

that he ‘‘would absolutely do’’ the test 

‘‘unless [he had] a clear understanding 

of what is the pathology and * * * that 

there is nothing [that] can be done to 

improve the condition, which is 

extremely rare.’’ Id. at 98. Dr. Mironer 

further stated that the ‘‘majority’’ of 

chronic pain patients can be helped 

with alternative treatments such as 

injections, nerve destruction or surgery, 

even if they ‘‘cannot be cured 

completely,’’ and that in his experience, 

the majority of chronic pain patients 

have ‘‘never received proper medical 

treatment.’’ Id. at 99–100. 

Moreover, while acknowledging that 

‘‘[p]ain is subjective,’’ Dr. Mironer 

explained that the cause of chronic pain 

can only be assessed through ‘‘objective 

findings.’’ Id. at 100. If the patient’s 

findings through physical examination 

and diagnostic tests are normal, and the 

‘‘patient has severe pain,’’ the pain is 

‘‘probably psychological in origin,’’ and 

should be treated accordingly. Id. 

Respondent’s Evidence 

Respondent testified on his own 

behalf. Respondent generally did not 

address Dr. Mironer’s testimony 

regarding the specific patients and his 

opinion testimony regarding the legality 


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30Respondent further maintained that S.M., who 

was hospitalized with a collapsed lung after 

obtaining prescriptions for Oxycontin which he 

proceeded to inject intravenously, was not in 

respiratory distress on ‘‘that day.’’ Id. at 299. While 

Respondent acknowledged that ‘‘respiratory 

depression will come from the narcotics,’’ he 

maintained that narcotics would not cause a lung 

to collapse. Id. at 300. 

Regardless of whether narcotics would cause a 

collapsed lung, respiratory depression is a known 

side effect of taking opiates, and it seems unusual 

to prescribe narcotics to a patient who has been 

diagnosed with C.O.P.D. The Government did not, 

however, ask its expert regarding the propriety of 

Respondent’s prescribing of Oxycontin and 

Roxicodone to S.M. in light of this condition. I thus 

do not rely on this conduct in determining whether 

the prescriptions were for a legitimate medical 

purpose. 

of the prescribings. Rather, Respondent 

testified as to the circumstances 

surrounding his starting his South 

Carolina practice, the results of the 

patient interviews conducted by the 

Investigators, his reasons for not 

requiring his patients to undergo 

diagnostic testing and alternative 

treatments, his prescribing for anxiety, 

and his prescribing to a person with 

track marks. 

The ALJ found that ‘‘Respondent 

appeared to tailor his testimony to suit 

his version of the events.’’ ALJ at 50. 

This was for good reason as beyond her 

personal observation of Respondent’s 

demeanor, as much of his testimony was 

patently self-serving, and frequently, 

absurd. 

According to Respondent, he opened 

up his pain management practice 

notwithstanding his lack of board 

certification in pain management and 

that he had not attended any 

conferences on pain management, based 

on what he had learned in his seven 

years as a family practitioner in 

Tennessee and while being treated by a 

board-certified pain specialist. Id. at 322 

& 324. Respondent maintained that he 

opened a pain management practice 

rather than a family practice, because it 

‘‘would be simple,’’ ‘‘[i]t wouldn’t 

require a lot of employees’’ or ‘‘a lot of 

the things that family practice requires,’’ 

and he ‘‘wouldn’t have to mess with 

insurance companies taking [forty to 

sixty] percent of the money.’’ Id. at 290. 

Respondent subsequently testified that 

he ‘‘needed money for retirement’’ and 

to pay bills for his old office in 

Tennessee because his office manager 

had ‘‘stolen between forty and two 

hundred thousand dollars.’’ Id. at 304. 

Respondent maintained, however, that 

his need for money was not the only 

reason he resumed practicing as he 

missed caring for patients. Id. 

Respondent also maintained ‘‘that it 

made sense that probably patients 

would come down’’ from Greeneville, 

Tennessee to see him, because ‘‘the pain 

clinics’’ near Greenville ‘‘were mostly 

full,’’ and the patients are ‘‘not going to 

go to a pain clinic that they don’t know 

something about the doctor.’’ Id. at 291. 

Respondent did not, however, establish 

that he had surveyed any pain clinics to 

determine whether they were still 

accepting patients. According to 

Respondent, patients would not simply 

go to a pain management center of a 

university-hospital (such as Duke or the 

University of Tennessee, which might 

also be a shorter drive) to be treated 

because they want a doctor that ‘‘they 

know something about.’’ Id. at 324–25. 

With respect to the evidence 

pertaining to his prescribing practices, 

Respondent admitted that ‘‘I could have 

done blood pressures and all at the 

house, but it is a little more 

cumbersome to do blood pressures.’’ Id. 

at 292. Respondent further 

acknowledged that ‘‘[i]f there were 

families there or whatever, they’re on 

the couch and we’re talking and I’m 

getting a history from them and all.’’ Id. 

Respondent maintained, however, that 

‘‘I did examine patients that were 

there,’’ that ‘‘I don’t [sic] people’s pants 

down in front of other people,’’ that ‘‘I 

didn’t discuss anything that was * * * 

confidential’’ without taking the person 

to another room. Id. at 292–93. 

Moreover, Respondent asserted that 

he was ‘‘just floor[ed]’’ by the evidence 

that the patients had told investigators 

that ‘‘they weren’t examined.’’ Id. at 

293. Relatedly, Respondent stated that 

‘‘[i]t’s nothing to listen to somebody’s 

heart[ ], lungs, check their back and 

neck,’’ and that he could ‘‘do a complete 

physical on somebody in three or four 

minutes.’’ Id. Respondent, however, 

then implicitly acknowledged that he 

had not performed physical 

examinations on at least some of the 

persons, testifying that ‘‘[B.J.P.] and a 

number of these patients say that they 

were not examined at my house, but 

they were at the office.’’ Id. 

Respondent also testified that ‘‘this is 

probably some of the worse 

documentation I’ve probably ever 

done.’’ Id. at 301. Respondent further 

asserted that those patients who told 

investigators that they didn’t know 

‘‘what their diagnosis is or what the 

[treatment] plans are for them [were] 

lying, plain and simple * * * because 

I go over the same routine with every 

patient.’’ Id. Respondent also 

maintained that he was ‘‘eminently 

qualified to treat anxiety and 

depression,’’ and that he would ‘‘always 

ask the basic questions’’ that are needed 

to diagnose ‘‘anxiety and depression.’’ 

Id. at 303. I conclude, however, that the 

records speak for themselves and 

because they do not set forth the 

findings required to support the 

numerous diagnoses Respondent made 

for both pain and chronic anxiety, or 

that he created plans that recommended 

treatments (other than taking drugs), I 

reject Respondent’s testimony. 

Relatedly, Respondent testified that 

‘‘he was probably at fault’’ for not seeing 

track marks on several of his patients’ 

arms was ‘‘because it was easier [to] 

listen to somebody’s heart and lungs, 

just underneath their shirt, [to] lift up 

their shirt, because they would wear 

long-sleeved shirts * * * and I didn’t 

remove their shirts usually.’’ Id. at 294. 

On cross-examination, Respondent 

acknowledged that if a patient’s medical 

records indicated that he had a history 

of IV drug use (as in the case of S.M., 

GX 52, at 8), it would ‘‘[t]o some 

degree’’ raise a red flag to examine his 

arms for current use. Tr. 329. 

Respondent insisted, however, that ‘‘I 

* * * make my own decisions about 

patients I treat.’’ 30 Id. 

Respondent also maintained that that 

he was willing to accept that a patient 

has not ‘‘had an MRI in four or five 

years * * * for a while,’’ but ‘‘there was 

going to be a time within a year, year 

and a half, that [he] was going to come 

up with something’’ because he was 

‘‘not going to jeopardize a patient.’’ Id. 

at 296. 

Relatedly, Respondent maintained 

that he did not ‘‘immediately’’ ask his 

patients to get MRIs because of the costs 

involved. Id. Finally, Respondent 

maintained that if his patients 

continued to put off obtaining trigger 

point injections, ‘‘the medication was 

going to stop.’’ Id. at 297. Respondent 

admitted, however, that he had never 

actually stopped prescribing to a patient 

even though he acknowledged that there 

were a few patients who he had been 

prescribing to for that long a period (a 

year and a half). Id. at 319. Finally, 

when asked whether he was aware of 

what was required under South Carolina 

law to establish a doctor-patient 

relationship, Respondent testified that 

he did not ‘‘know the details of it,’’ but 

that ‘‘you make contact and do basic 

things.’’ Id. at 335. 

Respondent also introduced into 

evidence various statements which were 

prepared by family members, 

professional acquaintances, and friends. 

See RXs 1–10. Of these statements, most 

are not remotely probative of the issues 

in this case. Among the statements, 

however, is one from a physician who 

‘‘assisted him at his clinic during the 

summer of 2008,’’ RX 1, as well as one 

from a nurse who worked for him ‘‘from 

approximately May 2002–May 2006,’’ 

when he was practicing in Greeneville, 

Tennessee. RX 3. 


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31Under Agency precedent, neither of these 

findings is dispositive. See Edmund Chein, 72 FR 

6580, 6590 n.22 (2007); Mortimer B. Levin, 55 FR 

8209, 8210 (1990). 

Notably, neither of these persons 

worked with Respondent during the 

period when he issued the prescriptions 

which are at issue here. Moreover, the 

unsworn statement of Dr. Koon (RX 1), 

reflects his observations of Respondent 

at a time when the latter was aware that 

he was under investigation and had 

ample reason to portray himself as 

responsible and law abiding. See GXs 2 

& 3 (Respondent’s letters to DEA 

Investigators regarding pending 

investigation). 

Nor does the statement from his 

former nurse support him. According to 

the nurse, Respondent ‘‘was very strict 

when it came to pain medicine and 

always attempted to control a patient’s 

pain first with a non-controlled 

substance and/or alternative 

medicine[,]’’ and ‘‘required all his 

patients to have supporting MRI/x-rays 

etc. * * * before ever giving any 

narcotic pain medication.’’ RX 3. 

Respondent’s former nurse also stated 

that he ‘‘always did thorough examines 

on his patients with each office visit,’’ 

that he requires his patents ‘‘to bring in 

their narcotic prescription bottles with 

each monthly visit,’’ and would do pill 

counts, and that he would request that 

his patients ‘‘come in for a drug screen’’ 

and give them 24 hours to come to the 

office and provide the specimen. Id. 

Indeed, the statement is remarkably 

consistent with Dr. Mironer’s testimony 

as to the appropriate and usual course 

of professional practice in prescribing 

controlled substances to patients and 

monitoring them to ensure that they are 

neither abusing the drugs nor diverting 

them, and buttresses Dr. Mironer’s 

opinion testimony that Respondent 

issued numerous prescriptions which 

lacked a legitimate medical purpose. 

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). 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. 

Id. § 823(f). 

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

in the disjunctive.’’ Robert A. Leslie, 

M.D., 68 FR 15227, 15230 (2003). 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. Moreover, I am 

‘‘not required to make findings as to all 

of the factors.’’ Hoxie v. DEA, 419 F.3d 

477, 482 (6th Cir. 2005); see also Morall 

v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 

2005). 

In this matter, it is undisputed that 

Respondent holds a valid medical 

license and a controlled substance 

registration from the State of South 

Carolina (factor one). It is also 

undisputed that Respondent had not 

been convicted of an offense related to 

controlled substances under either 

federal or state law (factor three).31 This 

proceeding focused, however, on 

Respondent’s experience in dispensing 

controlled substances (factor two) and 

his record of compliance with 

applicable federal and state laws (factor 

four). Having considered the record as a 

whole, I conclude that the Government 

has proved by a preponderance of the 

evidence that Respondent issued 

numerous controlled substance 

prescriptions which were unlawful 

under federal law and that he has 

therefore committed acts which render 

his continued registration ‘‘inconsistent 

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

824(a)(4). As the ALJ did, I also 

conclude that Respondent has failed to 

accept responsibility for his misconduct 

and therefore cannot be entrusted with 

a registration. 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

The principal issue in this case is 

whether the controlled-substance 

prescriptions Respondent issued 

complied with federal law. 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). This 

regulation further provides that ‘‘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.’’ Id. See also 21 U.S.C. 

§ 802(10) (defining the term ‘‘dispense’’ 

as meaning ‘‘to deliver a controlled 

substance to an ultimate user by, or 

pursuant to the lawful order of, a 

practitioner, including the prescribing 

and administering of a controlled 

substance’’) (emphasis added). 

As the Supreme Court recently 

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 United States v. Moore, 

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

Under the CSA, it is fundamental that 

a practitioner must establish and 

maintain 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.’’ Laurence 

T. McKinney, 73 FR 43260, 43265 n.22 

(2008); see also Moore, 423 U.S. at 142– 

43 (noting that evidence established that 

physician ‘‘exceeded the bounds of 

‘professional practice,’’’ when ‘‘he gave 

inadequate physical examinations or 

none at all,’’ ‘‘ignored the results of the 

tests he did make,’’ and ‘‘took no 

precautions against * * * misuse and 

diversion’’). The CSA, however, 

generally looks to state law to determine 

whether a doctor and patient have 

established a bonafide doctor-patient 

relationship. See Kamir Garces-Mejias, 

72 FR 54931, 54935 (2007); United 

Prescription Services, Inc., 72 FR 50397, 

50407 (2007). 

Under South Carolina law, ‘‘[i]t is 

unprofessional conduct for a licensee 

initially to prescribe drugs to an 

individual without first establishing a 

proper physician-patient relationship.’’ 

S.C. Code Ann. § 40–47–113(A). The 

statute further provides that: 

[a] proper relationship, at a minimum, 

required that the licensee make an informed 

medical judgment based on the 

circumstances of the situation and on the 

licensee’s training and experience and that 

the licensee: 


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(1) personally perform and document an 

appropriate history and physical 

examination, make a diagnosis, and 

formulate a therapeutic plan; 

(2) discuss with the patient the diagnosis 

and the evidence for it, and the risks and 

benefits of various treatment options; 

(3) ensure the availability of the licensee or 

coverage for the patient for appropriate 

follow-up care. 

Id. 

Relatedly, the South Carolina Board of 

Medical Examiners had adopted Pain 

Management Guidelines, which 

represent ‘‘what the Board considers to 

be within the boundaries of professional 

practice.’’ GX 67, at 2. The Guidelines 

advise that the prescribing of 

‘‘controlled substances for pain [will be 

considered] to be for a legitimate 

medical purpose if based on accepted 

scientific knowledge of the treatment of 

pain or if based on sound clinical 

grounds.’’ Id. 

However, ‘‘[a]ll such prescribing must 

be based on clear documentation of 

unrelieved pain and in compliance with 

applicable state or federal law.’’ Id. 

Moreover, ‘‘[a] complete medical history 

and physical examination must be 

conducted and documented in the 

medical record.’’ Id. at 2. The 

Guidelines further state that ‘‘[t]he 

medical records should document the 

nature and intensity of the pain, current 

and past treatments for pain, underlying 

or coexisting diseases or condition, the 

effect of the pain on physical and 

psychological function, and history of 

substance abuse,’’ as well as ‘‘the 

presence of one or more recognized 

medical indications for use of a 

controlled substance.’’ Id. 

Moreover, ‘‘[t]he written treatment 

plan * * * should state objectives that 

will be used to determine treatment 

success, such as pain relief and 

improved physical and psychosocial 

function, and should indicate if any 

further diagnostic evaluations or other 

treatments are planned.’’ Id. at 3. 

Continuing, the Guidelines advise that 

‘‘[o]ther treatment modalities or a 

rehabilitation program may be necessary 

depending on the etiology of the pain 

and the extent to which the pain is 

associated with physical and 

psychosocial impairment.’’ Id. The 

Guidelines also advise that the 

physician should periodically review 

the patient’s progress toward treatment 

goals, ‘‘monitor patient compliance in 

medication usage,’’ and ‘‘refer the 

patient as necessary for additional 

evaluation and treatment in order to 

achieve treatment objectives.’’ Id. 

The Guidelines further state that 

‘‘special attention should be given to 

those pain patients who are at risk for 

misusing their medications and those 

whose living arrangements pose a risk 

for medication misuse or diversion.’’ Id. 

Finally, the Guidelines advise that 

‘‘[t]he management of pain in patients 

with a history of substance abuse or 

with a comorbid psychiatric disorder 

may require extra care, monitoring, 

documentation, and consultation with 

or referral to an expert in the 

management of such patients.’’ Id. 

The record clearly establishes that 

Respondent repeatedly exceeded the 

bounds of professional practice and 

issued controlled-substance 

prescriptions which lacked a legitimate 

medical purpose as required by Federal 

law. 21 CFR 1306.04. Even putting aside 

the scandalous evidence obtained by the 

Investigators in their interviews with 

the patients, Dr. Mironer, who reviewed 

the patient files, testified that 

Respondent invariably prescribed 

narcotic controlled substances for pain 

based on inadequate physical 

examinations, as well as 

benzodiazepines for anxiety without 

any findings to support his diagnosis. 

Moreover, Respondent’s treatment plans 

were typically limited to prescribing 

multiple controlled substances; he 

rarely recommended that a patient 

undergo further testing, obtain a 

consultation from specialists, or try 

alternative treatment modalities, and 

failed to do so even when the 

prescribing went on and on. 

For these reasons, Dr. Mironer 

specifically testified that Respondent 

lacked a legitimate medical purpose in 

issuing controlled substance 

prescriptions to W.G., D.F., D.M., J.M., 

L.C., M.C., H.R. and A.R. (the latter two 

being married to each other and who 

received the same exact prescriptions on 

the same dates). See Tr. 68, 73, 75, 77, 

77–78, 79, 79–80. I agree and adopt Dr. 

Mironer’s conclusion that these 

prescriptions lacked a legitimate 

medical purpose and were therefore 

unlawful under federal law. 21 CFR 

1306.04(a). 

With respect to F.M., who was 

discharged by his previous physician 

only a short while before his first visit 

with Respondent when a drug screen 

was negative for a drug (Dilaudid) 

which had been prescribed to him, Dr. 

Mironer did not find that Respondent’s 

physical exam was inadequate. Tr. 75– 

76. Dr. Mironer did, however, note that 

notwithstanding F.M.’s having been 

discharged for noncompliance, 

Respondent issued controlled-substance 

prescriptions without any plan to 

monitor his use of the drugs through pill 

counts, pharmacy checks or urine 

testing; Dr. Mironer also noted that 

Respondent did not recommend any 

alternative treatments or consultations. 

Id. Notably, Respondent issued F.M. 

prescriptions for two schedule II opiates 

(MS Contin and Roxicodone), as well as 

benzodiazepines. 

Based on Respondent’s failure to 

properly monitor F.M.’s use of 

medications, his doubling of the 

strength of the MS Contin even though 

F.M. complained that the drug made 

him nauseous, and failure to create a 

treatment plan, Dr. Mironer concluded 

that the prescriptions were not issued 

for a legitimate medical purpose. Tr. 76. 

As the Supreme Court has explained, 

one of the purposes of the prescription 

requirement is to ensure that ‘‘patients 

use controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse.’’ 546 

U.S. at 274. As Dr. Mironer’s testimony 

establishes, Respondent did not 

properly supervise F.M.’s use of 

controlled substances, notwithstanding 

the evidence which suggests that he was 

either diverting or taking excessive 

amounts of Dilaudid. I thus adopt Dr. 

Mironer’s conclusion that the 

prescriptions Respondent issued lacked 

a legitimate medical purpose as required 

by federal law. 21 CFR 1306.04(a). 

Similarly, while S.M.’s medical 

history indicated that he had significant 

knee problems, it also established that 

he had abused street drugs including 

marijuana and cocaine, which he took 

intravenously. Moreover, at the second 

visit (which occurred twenty-five days 

after his initial visit), S.M. had only one 

tablet left of Oxycontin (out of the 

originally sixty tablets—a thirty day 

supply—which had been prescribed to 

him), and told Respondent that he had 

used Roxicodone (another schedule II 

drug) which he had obtained from a 

third person. Respondent nonetheless 

issued him a new prescription for 

Oxycontin and added a prescription for 

Roxicodone. As Dr. Mironer observed, 

notwithstanding the information 

Respondent had obtained as to S.M.’s 

history of drug abuse, he recommended 

no alternative treatment modalities and 

made no plan to control S.M.’s use of 

medications. Tr. 84. Dr. Mironer again 

concluded that Respondent’s 

prescribing to S.M. lacked a legitimate 

medical purpose. Id. So do I. 

Finally, with respect to C.H., Dr. 

Mironer did not take issue with 

Respondent’s physical examination or 

his diagnosis of pain. Dr. Mironer did, 

however, note that Respondent had 

prescribed methadone to C.H., and used 

the same dosing regime (a large dose 

once a day) which the drug treatment 

clinic had used and which is used to 

treat addiction. Id. at 81, 50. Dr. 

Mironer’s testimony established that 


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32Under federal law, a practitioner must meet 

extensive requirements and be separately registered 

to lawfully dispense narcotic drugs for maintenance 

or detoxification treatment. 21 U.S.C. 823(g). 

Respondent’s prescribing to C.H. was 

fundamentally dangerous because the 

analgesic effect of methadone is only six 

to eight hours, the proper dosing for 

pain involves much smaller amounts of 

the drug such as five or ten milligrams 

which are taken three to four times a 

day, and a patient may accumulate 

significant amounts of the drug and risk 

respiratory depression and possibly 

death. Id. at 52. 

Moreover, Dr. Mironer explained that 

when a patient has finished treatment 

for addiction, a psychiatric or 

psychological evaluation is required to 

ensure that the patient ‘‘is a good 

candidate’’ to treat with chronic 

opioids, that if the patient has been 

successfully treated for addiction he 

should no longer be on methadone, and 

if the patient still requires methadone, 

he is still addicted and should be 

treated by a methadone clinic. Id. at 81– 

82, 111.32 Dr. Mironer also observed that 

the Physicians’ Desk Reference advises 

against prescribing methadone for pain. 

Id. at 83. 

Furthermore, given that C.H. had been 

subjected to a drug screen the day before 

his first visit with Respondent, and that 

the printout of C.H.’s drug screen results 

stated that he ‘‘is currently medicating’’ 

with 80 mg. of methadone, Respondent 

had ample reason to question why it 

was necessary to prescribe to C.H. C.H.’s 

patient file contains, however, no 

indication that Respondent contacted 

the methadone clinic to determine 

whether C.H. was still being treated by, 

and receiving methadone from, it. I 

therefore agree with Dr. Mironer that 

Respondent’s prescribing of methadone 

to C.H. lacked a legitimate medical 

purpose. 

As the forgoing demonstrates, 

Respondent repeatedly issued 

controlled substance prescriptions 

without a legitimate medical purpose 

and therefore violated the CSA’s 

prescription requirement. See 21 CFR 

1306.04(a). Moreover, substantial 

evidence supports the conclusion that 

Respondent was knowingly diverting 

controlled substances. 

For example, Respondent initially 

denied writing prescriptions for B.J.P., 

his ‘‘pod mate’’ in the Greene County 

Jail, but then acknowledged that he had 

done so when confronted with the 

prescription he issued the day after his 

release from the jail. Moreover, the 

statements of various persons to 

Investigators regarding their road trips 

to see Respondent and the group 

sessions that occurred in his living room 

were to some degree corroborated by 

progress notes and prescription records 

indicating that the patients had seen 

Respondent on the same date. Relatedly, 

in his testimony Respondent did not 

deny that the group sessions occurred, 

but rather insisted that the patients were 

‘‘on the couch and we’re talking and I’m 

getting a history from them and all.’’ Tr. 

292. 

Furthermore, there was extensive 

evidence that nearly all of Respondent’s 

patients were driving from the 

Greeneville, Tennessee area (a nine to 

ten-hour round trip), when they could 

have obtained treatment much closer to 

home. It is absurd to suggest—as 

Respondent does—that his patients 

were legitimate but could not obtain 

treatment much closer to home. Finally, 

not only did H.R. and A.R., who were 

married to each other, jointly visit 

Respondent; at each visit, they received 

the exact same controlled substance 

prescriptions and did so even when 

Respondent doubled the strength of the 

Oxycontin he was prescribing. 

In sum, Respondent’s experience in 

dispensing controlled substances and 

record of compliance with applicable 

laws is characterized by his knowing 

diversion of controlled substances. I 

thus conclude that the Government has 

made out its prima facie case that 

Respondent has committed acts which 

render his registration ‘‘inconsistent 

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

824(a)(4). 

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 363, 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]s 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). 

In her discussion of factor five, the 

ALJ specifically found that Respondent 

had ‘‘refus[ed] to acknowledge his 

wrongdoing,’’ and that there was ‘‘little 

hope’’ that ‘‘he will act more 

responsibly in the future.’’ ALJ at 54. 

The ALJ thus ‘‘conclude[d] that 

Respondent is unwilling * * * to 

accept the responsibilities inherent in a 

DEA registration,’’ and recommended 

that his registration be revoked and any 

pending applications be denied. Id. I 

agree. 

On balance, Respondent’s testimony 

does not establish that he has accepted 

responsibility for his misconduct. For 

example, while it was an ancillary issue 

in the proceeding, Respondent insisted 

that he had done nothing to warrant the 

charge of resisting arrest even though he 

was convicted by a jury of the charge. 

Moreover, he insisted that his patients 

had lied when they told Investigators 

that he had not performed physical 

exams on them or told them what their 

treatment plan was. Indeed, with 

respect to the latter, he maintained that 

his patients had lied notwithstanding 

that his records rarely listed any plan 

other than to prescribe drugs and return 

in thirty days. 

Furthermore, Respondent maintained 

that he could do a complete physical 

examination ‘‘in three or four minutes,’’ 

and insisted that ‘‘he always ask[ed] the 

basic questions’’ needed to diagnose 

anxiety and depression even though the 

progress notes repeatedly lacked the 

findings necessary to support such a 

diagnosis. And while Respondent 

initially acknowledged that he was 

‘‘probably at fault’’ for not examining 

his patients’ arms for track marks 

indicative of current intravenous drug 

abuse, when asked whether he should 

have done so when a patient’s medical 

records established a history of drug 

abuse, he insisted that he ‘‘makes [his] 

own decisions about patients that [he] 

treat[s].’’ Tr. 329. 

As forgoing demonstrates, Respondent 

has not accepted responsibility for his 

misconduct. Moreover, while 

Respondent produced a letter from a 

physician, who had worked with him 

‘‘[f]or a short period of time’’ during the 

summer of 2008, which suggests that 

Respondent has reformed his practices, 

it is significant that at the time, 

Respondent was well aware that he was 

under investigation and had ample 

incentive to behave. Finally, 

Respondent’s misconduct was egregious 


rwilkins on PROD1PC63 with PROPOSALS
17544 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 

33According to the National Center on Addiction 

and Drug Abuse, ‘‘[t]he number of people who 

admit abusing controlled prescription drugs 

increased from 7.8 million in 1992 to 15.1 million 

in 2003.’’ National Center on Addiction and 

Substance Abuse, Under the Counter: The Diversion 

and Abuse of Controlled Prescription Drugs in the 

U.S. 3 (2005). The above figure is ‘‘23 percent more 

than the combined number abusing cocaine (5.9 

million), hallucinogens (4.0 million), inhalants (2.1 

million) and heroin (328,000).’’ Id. Moreover, 

‘‘between 1992 and 2003, there has been a * * * 

140.5 percent increase in the self-reported abuse of 

prescription opioids,’’ and during this period, the 

‘‘abuse of controlled prescription drugs has been 

growing at a rate twice that of marijuana abuse, five 

times greater than cocaine abuse and 60 times 

greater than heroin abuse.’’ Id. at 4. 

and caused extraordinary harm to 

public health and safety.33

I thus conclude that the revocation of 

Respondent’s registration is necessary to 

protect the public interest. For the same 

reasons that led me to order the 

immediate suspension of his 

registration, I conclude that public 

interest requires that this Order be 

effective immediately. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b) & 0.104, I hereby order 

that DEA Certificate of Registration, 

AA1071947, issued to George C. 

Aycock, M.D., be, and it hereby is, 

revoked. I further order that any 

pending application to renew or modify 

the registration be, and it hereby is, 

denied. This Order is effective 

immediately. 

Dated: April 3, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–8624 Filed 4–14–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Employment Standards Administration 

Proposed Extension of the Approval of 

Information Collection Requirements 

ACTION: Notice. 

SUMMARY: The Department of Labor 

(DOL), 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. Currently, the 

Employment Standards Administration 

is soliciting comments concerning its 

proposal to extend the Office of 

Management and Budget (OMB) 

approval of the Information Collection: 

Application for Certificate to Employ 

Homeworkers (WH–46); Piece Rate 

Measurements; and Homeworker 

Handbook (WH–75). A copy of the 

proposed information collection request 

can be obtained by contacting the office 

listed below in the ADDRESSES section of 

this Notice. 

DATES: Written comments must be 

submitted to the office listed in the 

addresses section below on or before 

June 15, 2009. 

ADDRESSES: Mr. Steven D. Lawrence, 

U.S. Department of Labor, 200 

Constitution Ave., NW., Room S–3201, 

Washington, DC 20210, telephone (202) 

693–0292, fax (202) 693–1451, E-mail 

Lawrence.Steven@dol.gov. Please use 

only one method of transmission for 

comments (mail, fax, or E-mail). 

SUPPLEMENTARY INFORMATION: 

I. Background 

Fair Labor Standards Act (FLSA) 

section 11(d), 29 U.S.C 211(d), 

authorizes the Secretary of Labor to 

regulate, restrict, or prohibit industrial 

homework as necessary or appropriate 

to prevent the circumvention or evasion 

of the minimum wage requirements of 

the Act. The Department of Labor (DOL) 

restricts homework in seven industries 

(i.e., knitted outerwear, women’s 

apparel, jewelry manufacturing, gloves 

and mittens, button and buckle 

manufacturing, handkerchief 

manufacturing, and embroideries) to 

those employers who obtain certificates. 

See 29 CFR 530.1–.2. The DOL now 

allows employers to obtain general 

(employer) certificates to employ 

homeworkers in all restricted industries 

except women’s apparel and hazardous 

jewelry manufacturing operations. See 

29 CFR 530.101. In order to obtain 

general certificates to employ workers in 

the restricted industries under the 

certification program, an employer must 

apply to the Wage and Hour Division 

(WHD) of the DOL. See Id. Form WH– 

46 is the application form used to obtain 

a certificate to employ homeworkers in 

restricted industries, and it must 

contain information required by 

Regulations 29 CFR 530.102—including 

names, addresses, and languages (other 

than English) spoken by the 

homeworker—and the written 

assurances set forth in Regulations 29 

CFR 530.103. If approved, the WHD 

issues a certificate that is valid for twoyear periods unless suspended or 

revoked. 29 CFR 530.101(b). Employers 

in the restricted industries under the 

certification program who pay workers 

based on piece-rates must record and 

retain documentation of the method 

used to establish piece-rates in order to 

verify that rates were properly 

determined and resulted in wage 

payments to homeworkers at a rate at 

least equal to the FLSA minimum wage 

for all hours worked in the workweek. 

29 CFR 530.202. To ensure employers 

fulfill their obligation to obtain and 

record accurate hours worked 

information whenever they distribute 

homework to employees and collect it 

from them, homeworkers record the 

information in Homeworker Handbooks 

(WH–75) as they perform the work and 

provide the Handbooks to their 

employer for transcription at the end of 

each pay period. See 29 CFR 516.31(c), 

530.103(d)–(e). This information 

collection is currently approved for use 

through October 31, 2009. 

II. Review Focus 

The DOL is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

III. Current Actions 

The DOL seeks the approval of the 

extension of this information collection 

in order to ensure employees working as 

homeworkers are paid in compliance 

with the FLSA and to allow the agency 

to carry out its responsibilities under 

the Act. 

Type of Review: Extension. 

Agency: Employment Standards 

Administration. 


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