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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-14]

T.J. Mcnichol, M.D.; Decision and Order

On October 27, 2011, I, the Administrator of the Drug Enforcement Administration, issued an Order to Show Cause and Immediate Suspension of Registration to T.J. McNichol, M.D. (Respondent), of Brandon, Florida. ALJ. Ex. 1. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration FM0624139, which authorizes him to dispense controlled substances in schedules II through V, as a practitioner, and the denial of any pending applications to renew or modify his registration, on the ground that his "continued registration is inconsistent with the public interest."Id.at 1 (citing 21 U.S.C. 823(f) and 824(a)(4)).

As support for the proposed action and the immediate suspension, the Show Cause Order alleged that "[o]n six separate occasions between approximately July 28 * * * and August 25, 2011, [Respondent] distributed controlled substances (oxycodone, a Schedule II controlled substance, and alprazolam, a schedule IV controlled substance) by issuing `prescriptions' to [four] undercover law enforcement officers [hereinafter, UC or UCs] for other than a legitimate medical purpose or outside the usual course of professional practice."Id.at 2. More specifically, the Order alleged that on July 28, 2011, Respondent "distributed" 180 tablets of oxycodone 30mg and 60 tablets of alprazolam 1mg to UC1 on theofficer's "first visit to [his] practice" and that he did so "after conducting only a cursory medical examination of [the officer] and despite [his] informing the [officer] that [his] physical exam did not correlate to any findings of pain as outlined" on the officer's MRI, and although "UC1 provided no history or illness that warranted the distribution of a controlled substance."Id.The Order further alleged that on August 25, 2011, Respondent distributed another 180 tablets of oxycodone 30mg and 60 tablets of alprazolam 1 mg to UC1, although UC1 "provided no history of injury or illness that warranted the distribution of a controlled substance" and after performing "a cursory physical examination."Id.

Next, the Show Cause Order alleged that on July 28, 2011, Respondent distributed 150 tablets of oxycodone 30mg and 90 tablets of alprazolam 1mg to UC2 on his initial visit, even though "UC2 provided no history of injury or illness that warranted the distribution of controlled substances" and that Respondent "conduct[ed] only a cursory physical examination" which lasted "approximately two minutes" and "despite the officer telling [Respondent] that he experienced little pain."Id.The Order further alleged that on August 25, 2011, Respondent distributed to UC2 an additional 150 tablets of oxycodone 30mg and 90 tablets of alprazolam 1mg after performing " a cursory medical examination" which "consisted only of [Respondent placing his] hands on the mid to lower back area of UC2 and asking if [he] experienced any pain in those areas."Id.The Order also alleged that "UC2 provided no history of injury or illness that warranted the distribution of a controlled substance" and that Respondent's "total interaction * * * with UC2 lasted approximately two minutes."Id.

With respect to UC3, the Show Cause Order alleged that on August 25, 2011, Respondent distributed 180 tablets of oxycodone 30mg and 30 tablets of alprazolam 2mg to the UC at his first visit, "while conducting only a cursory physical examination and despite the officer not providing any information in his medical questionnaire about experiencing any pain."Id.at 2-3. The Order also alleged that "UC3 provided no history of injury or illness that warranted the distribution of a controlled substance."Id.at 3.

Finally, with respect to UC4, the Show Cause Order alleged that on August 25, 2011, Respondent distributed 210 tablets of oxycodone 30mg and 60 tablets of alprazolam 2mg to the UC at his first visit.Id.The Order alleged that Respondent "conduct[ed] only a cursory physical examination" and that "UC4 provided no history of injury or illness that warranted the distribution of a controlled substance."1

Respondent requested a hearing on the allegations; the matter was placed on the docket of the Office of Administrative Law Judges and assigned to ALJ Timothy D. Wing. Following pre-hearing procedures, the ALJ conducted a hearing on January 17-18, as well as April 10-11, 2012.2 Upon conclusion of the hearing, the parties submitted briefs containing their proposed findings of fact, conclusions of law, and argument.

On May 17, 2012, the ALJ issued his recommended decision. With respect to factor one--the recommendation of the state licensing board--the ALJ found "that Respondent currently holds a valid, unrestricted medical license in Florida and has never been disciplined by the Florida Department of Health." ALJ at 45. The ALJ thus found that, while this factor is not dispositive, it "weighs against a finding that Respondent's continued registration would be inconsistent with the public interest."Id.

With respect to factor three--Respondent's conviction record under Federal or State laws related to the manufacture, distribution, or dispensing of controlled substances--the ALJ found that there was no evidence that Respondent has been convicted of such an offense.Id.While noting that this factor also is not dispositive, the ALJ concluded that it "weighs against a finding that Respondent's continued registration would be inconsistent with the public interest."Id.

Next, the ALJ considered factors two--Respondent's experience in dispensing controlled substances--and four--Respondent's compliance with applicable laws relating to controlled substances, together.Id.at 46-91. The ALJ noted that, under Federal law, a prescription for a controlled substance must be "issued for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice."Id.at 46 (citing 21 CFR 1306.04(a)).

Reasoning that because "Respondent's prescribing practices with regard to the undercover patients visits [were] not remotely close to `outright drug deals,'" and that "the undercover patient visits objectively reflect that Respondent's prescribing practices included, to a degree, a documented medical history, physician examination, documented urinalysis testing, medical record release forms, and pharmacy prescribing profiles, * * * consistent with applicable Florida law," the ALJ explained that "any finding that Respondent's prescribing conduct * * * was not for a legitimate medical purpose and outside the usual course of professional practice under the Florida Standards or standards generally recognized and accepted in the medical community will significantly depend on the evidentiary weight" given to the opinion testimony of the Government's Expert.Id.at 50. The ALJ then explained that, while he found the Government's Expert "qualified by education and experience generally," he did not find the Expert "qualified to render an expert opinion regarding Florida law and standards of medical practice" because he was not aware of the current state standards and the "significant change in the regulations as of October 2010."Id.at 51.

The ALJ further stated that he found that the Expert's testimony included "inconsistencies, factual errors, vague or nonresponsive answers to basic questions, and an overall lack of interest or even curiosity in examining all available information relevant to Respondent's prescribing conduct."Id.at 53. While acknowledging that the Expert's "testimony at various points did find some support in the evidence, overall his testimony and related opinions repeatedly demonstrated an unwillingness to consider positive conduct by Respondent, or even inquire of any, beginning with his October 24, 2011 report."Id.The ALJ also cited the Expert's financial interest as a Government Expert and what he characterized as a "history of near uniformity of opinion testimony on behalf of the Government" as grounds for his conclusion that the Expert's testimony lacked "the necessary independence, objectivity, and factual basis to be relied upon."Id.at 57-58.

Accordingly, based on what he deemed to be the absence of "credible medical opinion testimony," or other "credible evidence of misconduct by Respondent," the ALJ rejected the allegations that Respondent lacked alegitimate medical purpose and acted outside of the usual course of professional practice in prescribing to each of the UCs.Id.at 69, 75, 82, 91. The ALJ reached this conclusion notwithstanding his finding that Respondent prescribed Xanax to one of the UCs without any inquiry into "the medical basis for continuing the prescription" and that this "arguably supports a finding that such a prescription lacks a legitimate medical purpose, or is outside the usual course of professional practice."Id.at 82. The ALJ thus concluded that factors two and four "weigh heavily against a finding that Respondent's continued registration would be inconsistent with the public interest."Id.at 91.

With respect to factor five--such other conduct which may threaten public health and safety--the ALJ noted that Respondent, who had been called to testify by the Government, invoked his Fifth Amendment privilege and refused to testify. ALJ at 92. While the Government requested that the ALJ draw an adverse inference based on Respondent's refusal to testify, the ALJ declined to do so explaining that because the Government had failed to establish aprima faciecase that "Respondent's conduct was contrary to the public interest," his "testimonial silence with regard to acceptance of responsibility" was not relevant.Id.While acknowledging that an adverse inference may be permissible, the ALJ reasoned "that the failure to testify alone may not be taken as an admission of wrongdoing, without regard to other evidence."Id.at 92-93. Noting that "Respondent is facing uncertain criminal liability," the ALJ reasoned that he did "not find his testimonial silence during this parallel administrative proceeding to make it more likely than not that he would dispute an untrue accusation."Id.at 93. The ALJ then explained that "in light of the fact that the Government's evidence was insufficient to establish a prima facie case, particularly given the lack of credible medical expert testimony, Respondent's silence in and of itself does not appreciably tip the balance of evidence in favor of the Government."Id.The ALJ thus explained that even were he to draw an adverse inference, he would still find the evidence insufficient to conclude that Respondent's prescribing practices were unlawful.Id.Because in the ALJ's view, there was no other evidence that Respondent had engaged in conduct which may threaten public health or safety, the ALJ concluded that this factor also supported the continuation of Respondent's registration.Id.The ALJ thus recommended that the Order to Show Cause and Immediate Suspension be dismissed.Id.at 94.

On June 5, 2012, the Government filed Exceptions to the ALJ's recommended decision. Thereafter, on June 14, 2012, the ALJ forwarded the record to me for Final Agency Action.

I have carefully considered the entire record including the ALJ's recommended decision and adopt his findings with respect to factors one and three. However, I reject his findings with respect to factors two and four because, with respect to many of the prescriptions (especially those for alprazolam) Respondent issued to the undercover officers, expert testimony was not necessary to prove that he lacked a legitimate medical purpose and acted outside of the usual course of professional practice in issuing them. Indeed, with respect to one of the undercover officers, the ALJ ignored nearly all of the evidence of the conversation which occurred between Respondent and the officer which shows that Respondent knew the undercover officer was a drug abuser and that he engaged in an outright drug deal.

Likewise, with respect to the alprazolam prescriptions Respondent issued to three of the undercover officers, the ALJ entirely ignored relevant evidence and failed to discuss the evidence pertaining to these prescriptions. In other instances, the ALJ mischaracterized the evidence he cited. Finally, with respect to several issues, the ALJ failed to apply properly, or ignored entirely, precedents of both the Agency and federal courts.

Accordingly, as ultimate factfinder, I reject the ALJ's legal conclusion that the Government has not met itsprima facieburden of showing that Respondent has committed acts which render his continued registration inconsistent with the public interest.See Reckitt & Coleman, Ltd.,v.Administrator,788 F.2d 22, 26 (DC Cir. 1986) (citing 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the power which it would have in making the initial decision * * *")). Because even assuming, without deciding, that the Expert's testimony is not entitled to weight (notwithstanding the ALJ's inconsistent statements regarding the weight he was giving it), the record still contains substantial evidence that Respondent violated 21 CFR 1306.04(a) in issuing several of the prescriptions and he has offered no evidence that he acknowledges his misconduct and will refrain from engaging in similar acts in the future, I will order that Respondent's registration be revoked and that any pending application be denied.

I make the following

Findings of FactRespondent Registration and Licensing Status

Respondent is the holder of DEA Certificate of Registration FM0624139, which prior to the issuance of the Order of Immediate Suspension, authorized him to dispense controlled substances in schedules II through V as a practitioner, at the registered location of Quality Care Medical Group (hereinafter, QCMG), 143 Oakfield Drive, Suite 102, Brandon, Florida. GX 1-2. Respondent's registration does not expire until January 31, 2014. GX 2.

Respondent is also the holder of an active medical license issued by the Florida Board of Medicine, which does not expire until January 31, 2014. ALJ at 45 n.76. There is no evidence that Respondent's state license has been the subject of any disciplinary proceedings.See id.

The DEA Investigation of QCMG

QCMG first came to the attention of DEA in early 2010, when a Task Force Officer (TFO) received information from various sources including citizens, anonymous callers and a cooperating defendant regarding a QCMG clinic located in Bradenton, Florida. Tr. 50-53. The information included a report that persons were traveling to QCMG from out-of-state locations, that QCMG allowed sponsors to bring groups of people into the clinic, and that persons were presenting fraudulent MRIs and prescription profiles to obtain admission as patients.Id.at 53-55.

In June 2011, DEA commenced undercover operations at the Bradenton location and sent in several undercover officers who presented MRIs and patient profiles and were able to see the doctor who worked at that location.Id.at 61, 70-71. During the investigation, the officers determined that the owners of QCMG also had a clinic located in Brandon, Florida and decided to conduct undercover operations at the latter location as well.Id.at 72. In total, four undercover officers made visits to the Brandon location.Id.at 73. Two of the officers, who used the undercover names of Anthony Thompson and Robbie Payne, each made two visits to the Brandon clinic and saw Respondent on both occasions.Id.The other two officers, who used the undercover names of Mike Corleone and Eric McMillen, went to the Brandon location and saw Respondent once.Id.

The Undercover Visits of Robbie Payne

On some date not specified in the record but shortly before July 28, 2011, a Task Force Officer (TFO) using the undercover name of Robbie Payne went to the QCMG Bradenton clinic but was turned away because he did not have an appointment. Tr. 169-70. During a discussion following the operation, the investigators decided that the TFO would contact the Brandon clinic and make an appointment.Id.at 174. The TFO called the Brandon clinic and was able to make an appointment for July 28th.Id.

On July 28, the TFO went to the clinic, wearing a recording device, and brought an MRI and a profile purporting to show what prescriptions he had obtained; the latter showed that Payne had last received prescriptions for 210 tablets of oxycodone 30mg, 90 tablets of oxycodone 15mg, and 90 tablets of Xanax 2mg on April 10, more than three and a half months earlier.3 Id.at 174-77; RX 4, at 15; RX 1, at 36-39. The TFO testified that he was required to fill out various forms requiring personal information, waivers, and a questionnaire which included historical information, previous medications, pain levels, and how the pain "affected" his life. Tr. at 175. The TFO further testified that the questionnaire used a "0 through 10" pain scale and asked him to rate his "pain at that moment" and when he was "on medications."Id.at 175-76. While the TFO did not remember "the exact number" he wrote down for his pain at the present time, he testified that usually writes "something between 0 and 4."Id.at 176. With respect to what he wrote as his pain level with medications, Payne testified that he would write "the same number."Id.

The TFO did not, however, recall whether the questionnaire had any questions regarding whether he suffered from anxiety.Id.Eddie Gomez, Respondent's Medical Assistant, testified that the medical questionnaire which patients were required to fill out contained no information about anxiety.Id.at 984. However, Gomez then changed his testimony, explaining that the questionnaires, which were subsequently shredded under the clinic's policy, did ask about anxiety.Id.at 985-86.

The TFO also testified that one of the forms had a picture of a human body and that he "deliberately" circled a part of the body that was different than his MRI "to disprove * * * the MRI."Id.at 180. After turning in his paperwork and paying for the visit, Payne took a seat in the waiting room.Id.at 176-77.

The TFO was eventually summoned from the waiting room by Eddie Gomez, who identified himself as the office manager and Respondent's assistant.Id.at 178; GX 14, at 4. Gomez took the TFO's height, weight and blood pressure; Gomez then asked him whether he was going to another pain management clinic (with the TFO answering "no") and stated that the clinic reported doctor shoppers to the authorities. Tr. 178; GX 14, at 4. Gomez explained that "[t]hese are Schedule II drugs, C II drugs, uh * * * narcotics. You cannot share them, sell them, okay?," and asked the TFO if he was "abusing pain meds or illegal substances."Id.at 5.

Gomez then said that he was going to do a drug screen on the TFO and asked him when the last time was that he took his meds.Id.The TFO stated that he had been prescribed drugs "a while ago," and Gomez acknowledged that "April was the last script."Id.The TFO then added that "that was the last time * * * that I actually saw a doctor, but I take them here and there, from * * * wherever."Id.Gomez asked if the TFO had taken drugs "this morning?"Id.The TFO replied "[n]o, no, no" and added that it was "a week or two."Id.Gomez then asked how long the TFO had been on pain meds, with the latter replying that he had started about a year and a half to two years ago, but that it was "kind of sporadic."Id.at 6. Gomez then asked the TFO what clinic he had gone to; the TFO stated that the clinic was in south Florida and named "Real Care" but that he thought the clinic had gone out of business.Id.

Gomez gave the TFO a cup for a urinalysis and the TFO provided a sample.Id.at 6-7. Gomez then tested the TFO's sample, which "came back all negative." Tr. 179; GX 14, at 8. Gomez, however, prepared a Drug Urinalysis Test form on which he circled that the TFO was "positive" for "Oxy." RX 1, at 40. In his testimony, Gomez insisted that the TFO tested positive for oxycodone. Tr. 944-45, 959. However, I find (as did the ALJ) that Gomez falsified this form. Thereafter, Gomez escorted the TFO to an exam room.

The TFO testified that Gomez did not ask him about the source of his pain, or whether he had any problems with anxiety or sleeplessness.Id.at 181-82. Gomez testified at the hearing that if the TFO "was a new patient," Respondent (and not himself) would ask the patient if he had pain or anxiety.Id.at 959-60. Moreover, Gomez testified that one of his responsibilities was to review the information that the patients provided on their medical questionnaires and enter the information into the clinic's Electronic Medical Record System (EMR).Id.at 932, 952.

Gomez testified that after the information was entered into the EMR, "it was shredded."Id.at 940, 952.4 Gomez also testified that in doing the "review of systems," his role was to review the patient's "past medical history, social history, which was on the initial paperwork, [and] any family history, if they had any family history."Id.at 942.

Respondent entered the exam room and introduced himself. GX 14, at 9. Respondent noted that the TFO had been in pain management in south Florida but that "they went out of business."Id.The TFO said "yes" and Respondent surmised that his previous clinic had been "shut down."Id.The TFO replied that he did not "know what happened to them."Id.at 10.

Respondent reviewed the TFO's MRI, noting that it showed a "mild disc bulge" at "two levels, without significant central canal or neuro."5 Id.Respondent then told the TFO that "[t]he reason why they're out of business is cause they've been prescribing inappropriately. Okay?"Id.The TFO replied, "uh-hum," and Respondent stated: "I can't give you near the pills that you were getting. Not even remotely close. You, I, I haven't even done a physical exam * * * Just based on your MRI here, its * * * I can't do it."Id.

The TFO replied that "that's just what they prescribed, that's not what I actually took," and after Respondent said "okay," the TFO added: "So I didn't * * * I didn't, I can't * * * tell, you're the doctors, so I don't know * * * So that's just what they gave."Id.After acknowledging the TFO's statement, Respondent stated "you know you got two bulging discs, with, and it doesn't talk about pushing on anynerve roots or anything like that, I mean, this is as close to a normal MRI as you can get without it being actually normal. You see what I'm saying?"Id.The TFO replied "uh-hum," and Respondent added: "I mean the most I can do for you would * * * And I'm telling you this in case you don't want to come here. Okay? Cause I hate for you to spend all of your money, coming here and not get what you need."Id.

The TFO said "alright" and Respondent added: "Okay? Could, and * * * what you should get, and what you need, often sometimes is two different things cause if you've been on a certain number of pills, for a long time, if you don't get those number of pills, you're going to be sick."Id.at 11. After the TFO said that he "got that," Respondent stated: "you know what I mean? So I mean, I'm at the point * * * I mean just by looking at this without even doing the physical exam yet. * * * I mean I'm looking at maybe a hundred and fifty of them."Id.The TFO replied: "And honestly that's about where I was."Id.Respondent proceeded to conduct his physical exam which took all of one minute and thirty-nine seconds. GX 13.

During the physical exam, Respondent asked the TFO various questions regarding the location of his purported pain. GX 14, at 11. For example, Respondent asked the TFO if most of his pain was in his lower back.Id.The TFO replied: "uh-hum."Id.Next, Respondent asked: "How about out to the sides, here?"Id.at 12. The TFO again replied: "uh-hum."Id.Respondent then asked: Down on this side?"Id.The TFO replied: Yeah.Id.Respondent then asked "anything like that?"Id.The TFO answered: "a little bit."Id.Respondent then asked: "[a]nything on this side?"Id.The TFO replied, "Uh-hum * * * probably the same as the other side, I guess, yeah."Id.

Following an apparent test of the TFO's reflexes, Respondent asked him to stick his legs out and whether doing so caused pain; the TFO stated "not right now."Id.Respondent then asked the TFO to give him "a little twist" and whether this caused pain; the TFO said "not at the moment."Id.Respondent said "that's fine," and asked the TFO to give him "another little twist"; the TFO again denied that the movement caused any pain.Id.Respondent then noted that he was done with the physical exam.Id.

Following a discussion of the EMR system, Respondent asked the TFO if he had been getting Xanax.Id.at 13. The TFO answered "yes," and when Respondent asked "for anxiety?" the TFO said "for sleep."Id.Respondent noted the TFO's answer and explained that he did not prescribe the two milligram dosage units of Xanax because of its "a high street value" and only prescribed the one milligram strength.Id.While Respondent told the TFO that he should not double up on the Xanax, he did not engage the TFO in any further discussion regarding his sleep problems.Id.

After Respondent and the TFO discussed how the latter made his living, Respondent gave the TFO his "new patient talk," which included telling him to take his medication as prescribed, and that there is "no such thing in this clinic * * * of running out of medication.Id.at 14-16.Respondent further explained that "one of the reasons why we don't run out here" is because "I don't want you taking medication, the way you want to take them, because that will put you in jeopardy of overdose."Id.at 16. Respondent added that "I don't want you to do that, that, I don't want you to, risk my license by doing that, and on top of that I want to keep you in the clinic."Id.Respondent explained that the TFO would be subject to random urine testing and that it was a "no tolerance clinic."Id.Respondent also told the TFO not give to give his "medication to anybody else," or "take any from anybody else," and that if his medication was stolen, he needed a police report.Id.Respondent then asked the TFO if he had any questions; the TFO said no.Id.at 16-17.

Respondent added: "We're pretty strict here * * * but we do have fun also," a point which he reiterated.Id.at 17 ("We have fun, we, you know, we're a pretty fun office, uh, but we do, we uh strictly do things by the book."). Respondent then showed the TFO the window where he would get his prescriptions and said that he would see him "in a month."Id.at 17-18.The visit then concluded.Id.at 18.

The evidence shows that Respondent wrote the TFO a prescription for 150 tablets of oxycodone 30mg, and a prescription for 90 tablets of Xanax 1mg. GX 15, at 1. In the medical record for the visit, Respondent documented the TFO's pain level as a "3" and that it was of mild severity.6 RX 1, at 26. Moreover, in the physical exam portion of the record, Respondent documented having palpated the TFO's cervical spine as well as paravertebral muscle groups, yet the video recording of the visit clearly shows that this was never done. RX 1, at 28; GX 13. In addition, Respondent documented findings based on range of motion tests (rotation, bending, flexion, and extension) for all three portions of the TFO Payne's spine (cervical, thoracic and lumbar). RX 1, at 28. Here again, the video shows that while Respondent had the TFO twist his torso and do a straight leg raise of both legs, he did not test the TFO's range of motion on bending, extension or flexion. GX 13. Nor did he do any tests of the TFO's range of motion in his cervical spine.Id.

In the TFO's medical record, Respondent further recorded a diagnosis of "generalized anxiety disorder," which he deemed to be "active" and "chronic," notwithstanding that under the "psychiatric" section of the "review of systems" section, Respondent noted that "Patient denied problems with mood disturbance. No problems with anxiety." RX 1, at 27-28.

Likewise, under the "psychiatric" section of the physical examination, Respondent noted: "Oriented with normal memory. Mental status, judgment and affect are grossly intact and normal for age."Id.at 20.7 See alsoTr. 190-92 (TFO's testimony that Respondent did not discuss whether he had generalized anxiety disorder and whether he saw another physician for treatment of anxiety").

In addition, in the "Instructions" section of the medical record, Respondent wrote the following:

RX 1, at 29. At no point during this visit, however, did Respondent discuss with the TFO any of these instructions.SeeGX 13-14. Most significantly, at no time did Respondent ask the TFO what caused his pain or injury and how he gotten by when his last prescriptions were issued more than three months earlier, or why he had tested positive for oxycodone given when he had purportedly last filled prescriptions for the drug.

On August 25, the TFO, again wearing a recording device, returned to the Brandon clinic. Tr. 192. Upon his arrival, the TFO checked in with the receptionist and paid the fee for the visit. RX 4, at 21-22. Before even seeing Respondent, the receptionist gave the TFO an appointment for a follow-up visit.Id.at 22.

After about twenty-five minutes, Eddie Gomez called the TFO back to the triage room and took his weight and blood pressure. GX 17, at 2-3. Gomez then told the TFO to return to the waiting room and that he would be called next.Id.at 3. After a short wait, Gomez told the TFO to go to an exam room. RX 4, at 22-23.

Respondent entered the exam room and asked the TFO "what's going on"; the TFO replied: "How you doing?" GX 17, at 4. Respondent answered, "All right, what's up? How did your month go?"Id.After the TFO said that "everything is good," Respondent asked: "Medication treatin[g] your pain well?"Id.The TFO answered "Yeah," and added that he had "no problems or issues."Id.Respondent asked: "No questions?" The TFO replied: No, mm-mm. Everything is good."Id.

Respondent then stated that he would "be feeling [the TFO's] lower back and get you going"; Respondent then asked: "[a]ny pain down in this areas here, how about here?"Id.The TFO replied: "Mm-mm." Respondent then asked: "Anything out on the sides at all?" The TFO answered: "Nothing that was, uh, * * * any different than the last."Id.Respondent asked: "Nothing was--nothing like this, right?"Id.The TFO replied: "Mm-mm."Id.Respondent then said "all right. Questions? Nope, you are all set."Id.The TFO then thanked Respondent.Id.At the conclusion of the visit, Respondent issued the TFO prescriptions for another 150 oxycodone 30mg and 90 Xanax 1mg. GX 18.

The entire interaction between the TFO and Respondent lasted less than two minutes. GX 17. As the TFO wrote in his report for the visit:

RX 4, at 23.

Here again, evidence shows that Respondent made findings in the medical record notwithstanding that he never performed various tests. For example, the medical record for the visits noted that there was "no change" in the pain's "status," noted that it radiated into his "upper back," that the "timing" of the pain was "constantly, during the day and EVENING," and that its "quality" was "radiating and dull." The record further listed "sleep and physical activity" as "affected daily activities." RX 1, at 30.

Respondent also documented that he had done a neurologic examination, in which he found that the TFO had "[n]ormal and symmetrical deep tendon reflexes with no pathological reflexes." RX 1, at 31. Likewise, Respondent made findings that he had palpated the TFO's cervical spine and the surrounding areas, as well as that he had had the TFO perform various range of motion tests of various portions of his spine.Id.at 31-32. However, as the TFO's report makes clear, Respondent did not do anything other than palpate his lower back area. RX 4, at 22-23.

The Undercover Visits of Anthony Thompson

On July 27, 2011, a Special Agent, who used the name of Anthony Thompson, attempted to see a doctor at the QCMG clinic Bradenton. Tr. 240. While the Agent was turned away because he was not thirty years of age and his MRI could not be verified, a staff member advised him to go to the Brandon clinic because it was not "as strict as the Bradenton clinic."Id.at 240-41.

The next day, the Agent, who was wearing a recording device, went to the Brandon clinic and presented an MRI8 and a prescription profile.Id.at 240-41. The Agent filled out various forms covering his personal information, past history and family history of illnesses, and a questionnaire regarding his pain levels.Id.at 243. The Agent did not recall the actual numbers he had written on the pain questionnaire, but stated that he would have written a five or below.Id.The Agent did not recall whether any of the questionnaires asked if he had anxiety.Id.at 244. According to the medical record, the Agent's pain was of "mild" severity and was "4 on pain scale," and that it radiated into the "neck and upper back." RX 1, at 15. In addition, while the medical record indicates that the Agent complained that his pain occurred "frequently and nocturnally" and was aggravated by sleeping, walking and standing for a long period of time," the Agent denied that he told this to either Mr. Gomez or Respondent. Tr. 282-83; RX 1, at 15.

Mr. Gomez called the Agent and identified himself as the doctor's assistant. GX 7, at 3. Mr. Gomez proceeded to review the rules of the pain contract, told the Agent that the clinic reported doctor shoppers, asked if he was taking "any illegal substances," and what pain management clinic he was going to.Id.The Agent replied that he had seen a Dr. Barton, who had since died.Id.Mr. Gomez then asked the Agent about Dr. Burns, a physician who was listed as the Agent's physician on the MRI.Id.,RX 1, at 23. The Agent replied that Burns was "somebody that the MRI place referred me to," noting that he "had to get a new MRI." GX 7, at 3. Gomez then asked the Agent when he had last gotten his pills and when he had last taken them; the Agent replied that he thought he had filled his prescriptions "in the middle of June."Id.Gomez then said: "So you shouldn't have anything in your system," and the Agent answered: "Right, I don't have anything; I've been out for a while."Id.at 3-4. Gomez then said he was going to do a drug screen on the Agent.Id.at 4.

After taking the Agent's weight and blood pressure, Gomez asked him about his employment status, education level, marital status, and whether he had kids; whether he smoked, used alcohol or caffeine; whether he had any blood transfusions; whether he had body piercings or tattoos; whether he exercised; and whether he had any significant family history.Id.at 5-6. Gomez then tested the Agent's urine sample.Id.

According to the Drug Urinalysis Test form, the Agent tested positive for benzodiazepines and oxycodone. RX 1, at 24. At the hearing, however, the Agent testified that he did not take either benzodiazepines or oxycodone; that in his position, he was subject to drug testing; and that he could not take these medications unless they were prescribed to him. Tr. 301. While Gomez insisted in his testimony that the Agent had tested positive for thesedrugs, and noted that the form was signed, Tr. 943-44, 962-63; the ALJ noted that the Agent did not recall signing the form and that both the recording and the Agent's report concerning the visit show that Gomez had confirmed that the test was negative. ALJ at 71. Accordingly, the ALJ did not find Gomez's testimony credible and I adopt this finding.

Following a discussion of the clinic's recordkeeping system, Gomez took the Agent to an exam room. GX 7, at 7. Respondent eventually entered the room, introduced himself, and proceeded to look at the Agent's MRI.Id.at 7-8. Respondent then asked the Agent if most of his pain was in his lower back.Id.at 8. The Agent replied: "Um kinda up towards the mid back too."Id.Respondent replied ok, and asked how the Agent "hurt [his] back."Id.The Agent answered that "[i]t's just something that, it's over time."Id.Respondent asked if it had "gotten worse?" and the Agent said "Ah huh."Id.

Respondent said "ok," and proceeded to conduct a physical exam which lasted less than two minutes.Id.During the exam, Respondent placed a stethoscope on the Agent's back and stomach and asked him to breath, tested the reflexes in the Agent's knees, and had him sit on the edge of an exam table and extend his legs out straight and asked if this caused pain in his back; the Agent replied: "It's ok."Id.Respondent then placed his hands on the Agent's shoulder, and pressing downward, asked the Agent to turn his torso to each side and whether this was painful.Id;RX 4, at 4-5. The Agent replied "mmm," to which Respondent said "mmm? You don't have to; it doesn't mean anything it just helps me assess." GX 7, at 9. The Agent said "ok," and the physical exam ended.Id.

The Agent then asked Respondent how long he had been at the clinic; Respondent said that he had been there since February and that when he started there, the doctors who had come before him "would basically give anything to anybody."Id.Respondent also stated that the clinic had had an employee, who "was doing shady things" but had since been fired and reported to DEA.Id.Respondent further maintained that he had "clean[ed] the practice up a bit" by "dropping people down to reasonable levels on their medications, that * * * what the state and medical personnel would deem what is appropriate."Id.He also stated that "it seemed like everyone was on" the "trifecta" of Oxycodone, Xanax, and Soma, which was "just asking for trouble" in the form of overdose deaths.Id.Respondent noted that Soma metabolizes into a substance, which reacts and magnifies the effect of oxycodone and Xanax, which "are respiratory suppressants to begin with."Id.Respondent then stated that "we want to comply with all of the laws, we want to do things appropriately, and not piss the DEA or any law enforcement agency off."Id.Respondent added that "we're naive to think they haven't sent people through here as fake patients" but that he was fine with this because he doesn't "do anything I'm not supposed to do."Id.at 9-10.

Respondent then told the Agent that his physical exam did not "one hundred percent correlate with [the] finding on your MRI," and that his "physical exam [wa]s a lot better than your MRI," but that "there is some stuff on your MRI that would justify you having pain."Id.at 10. Respondent then asked "why were they giving you 30's and 15's?"Id.The Agent replied, "That's what he had prescribed."Id.

Respondent replied that "that's very odd" because "the 30's and 15's are * * * both break through medications" and "do the same thing."Id.After the Agent interrupted, asking "splitting them up like that?," Respondent stated that this was "a common way for doctors to hide more medication."Id.Respondent then explained that "I wouldn't say hide" but that "the unofficial max is like 240, 210, 240 on 30's," and that doctors would write "a prescription for 240 then they'll throw in a 120 15 * * * instead of writing 300 or so" in the event "they get investigated."Id.Continuing, Respondent added that he would "rather not do both types of medications," meaning the 30s and the 15's.Id.

Respondent then told the Agent that based on the latter's MRI and physical exam, he would give him 180 tablets of oxycodone 30mg but not the 15s.Id.The Agent replied "ok," and Respondent added: "Just to give you essentially the same amount of milligrams all along, * * * what I'd like to do is taper you down as far as we can go, where that you're still comfortable."Id.at 11. Respondent then noted that the Agent was "fairly young, your [sic] 29" and that most people under the age of 30 don't need to be on pain management."Id.

Next, Respondent said: "I take it you have some anxiety as well is that what's going on with you?"Id.After the Agent replied, "Yeah, that's the Zanny's help out," Respondent said: "Ok, first of all let me tell you we don't call them Zanny's or bars or any of the street terms in here, ok, we call them Xanax or alprazolam, whichever one you want to call them."Id.Respondent then explained that "I don't typically give the two milligrams out[,] I give the ones * * * the twos have too much of a street value."Id.

Respondent then observed that "on July 1st[,] the law states now that if the patient has a psychiatric um problem along with being on pain management the law states we have refer you to psychiatry."Id.After the Agent said "ok," Respondent said "that doesn't necessarily mean you have to follow up with that, that just means I have to tell you to go, which is I am telling you to go."Id.

Respondent did not, however, provide the Agent with the name of any psychiatrist to see. Tr. 255. Moreover, in the psychiatric section of the "review of systems," Respondent noted: "Patient denies problems with mood disturbance. No problems with anxiety." RX 1, at 16. Likewise, in the psychiatric portion of the physical examination, Respondent documented: "Oriented with normal memory. Mental status, judgment and affect are grossly intact and normal for age."Id.at 17. Respondent nonetheless recorded a diagnosis of "Generalized Anxiety Disorder" which was "active" and "chronic."Id.

Respondent then gave the Agent his "new patient speech" and the visit ended.Id.at 11-12. According to the medical record, Respondent diagnosed the Agent as having lumbar disc displacement, lumbar lumbosacral disc degeneration, and backache unspecified, all of which were "active" and "chronic." RX 1, at 17. At the conclusion of the visit, Respondent issued the Agent prescriptions for 180 tablets of oxycodone 30mg and 60 tablets of Xanax 1mg. GX 8, at 1.

On August 25, 2011, the Agent returned to the clinic, and again wore a recording device. Tr. 256. The Agent met the receptionist, paid the fee for the visit and sat down in the waiting room. RX 4, at 10-11. After approximately thirty minutes, the Agent was called by Mr. Gomez for triage, who took his weight and blood pressure. GX 10, at 6; RX 4, at 11. Mr. Gomez did not, however, ask the Agent any questions regarding his health. GX 10, at 6; RX 4, at 11. The Agent then returned to the waiting room. RX 4, at 11. Moreover, the Agent testified that he did not recall filling out any forms at this visit. Tr. 295.

Shortly thereafter, Mr. Gomez called the Agent and took him to an exam room. Respondent entered the exam room, and after exchanging pleasantries, asked the Agent if the "medication isworking ok?" GX 10, at 7. The Agent answered: "Yep, great."Id.Respondent asked: "Questions for me at all?"Id.The Agent replied, "No, I'm good."Id.Respondent then asked: "The medications are controlling your pain well?"Id.The Agent replied: "Yeah, everything's great."Id.

Respondent then had the Agent stand up and explained that "[t]he state makes me do a physical exam each time."Id.Respondent placed his hand on the Agent's mid to lower back and asked: "Most of the pain in here at all? Is this where it is or is it down further."Id.;RX 4, at 12. The Agent stated: "Right around that whole area." GX 10, at 7. Respondent replied: "Right around this whole area? All right."Id.Respondent "then directed the [Agent] out of the" exam room and the two walked up to the receptionist's counter, where Respondent obtained two printed prescriptions, which he signed and gave to the UC. RX 4, at 12. The prescriptions were for 180 tablets of oxycodone 30mg and 60 tablets of Xanax 1mg. GX 11.

The medical record for this visit indicates that the Agent presented with low back pain, with a severity which was "mild" and a "4 on the pain scale," that there was "no change" in the pain's status, and that the pain radiated into the Agent's "neck and upper back." RX 1, at 19. In the review of systems section, the record again states: "Patient denied problems with mood disturbance. No problems with anxiety."Id.And, as before, in the psychiatric section of physical examination portion, the record states: "Oriented with normal memory. Mental status, judgment and affect are grossly intact and normal for age."Id.

The medical record further documents various tests as having been performed which clearly were not. For example, under the neurologic findings for the physical exam, the record states "normal and symmetrical deep tendon reflexes with no reflexes."Id.Yet there is no evidence that Respondent tested the Agent's reflexes.

Likewise, with respect to the Agent's lumbar spine, the record states: "Full active ROM with rotation, Full active ROM with bending. Full active ROM with flexion and Full active ROM with extension." RX 1, at 21. And with respect to the Agent's thoracic spine, the record states: "Full active ROM with extension. Full active ROM with flexion. Full active ROM with bending. Full active ROM with Rotation."Id.at 21. Here again, the evidence shows that these tests were not performed.

The Undercover Visit of Eric McMillen

On August 25, 2011, another Special Agent, using the name of Eric McMillen, saw Respondent at the Brandon Clinic. However, on July 21, 2011, the Agent had seen a Dr. Mosley at the QCMG Bradenton clinic. GX 20; Tr. 348-55. The Agent acknowledged that he had provided a pharmacy profile and MRI,9 id.at 385 & 353; filled out a medical questionnaire at this clinic, which asked that he rate his pain,id.at 349-50; that a physician's assistant had asked him some questions about the nature of his pain, as well as why he was in Bradenton when his driver's license indicated that he was from Fort Lauderdale,id.at 352; that he had complained of pain in his "lower back, specifically the lower back right side,"id.at 355; and that it was possible that he had noted on the paperwork that when the pain was at its worst, he had "some trouble sleeping."Id.at 356. The Agent further testified that he "probably" saw the doctor at the Bradenton clinic for "at least thirty minutes," and on cross-examination agreed that Mosley's exam was "pretty thorough."Id.at 413. At the conclusion of the visit, the Agent obtained prescriptions from Dr. Mosley for 180 tablets of oxycodone 30mg and 30 tablets of Xanax 2mg.Id.at 356-58; GX 20.

The Agent's medical record also includes a chart for his initial visit with Dr. Mosley. RX 1, at 60-61. While the chart lists Dr. Mosley's prescriptions to include "Xanax 2 mg qhs PRN Anxiety #30," notably the chart contains no findings pertinent to the Agent's having anxiety (or sleeping problems) and Mosley did not list anxiety as one of his diagnoses in the diagnosis/assessment section of the chart.See id.Indeed, on the first page of the chart, under "Psych Hx," the block for anxiety (as well as other mental health conditions) is blank, and in the portion of the form for noting whether the patient had a family history of various conditions including "mental health," Mosley wrote "none."Id.at 61.

On August 25, 2011, the Agent, who wore a recording device, went to the Brandon clinic where he saw Respondent. Tr. 358-59, 363. While the Bradenton clinic was supposed to fax over the Agent's medical record, it had not done so; the Agent was subsequently required to fill out a medical questionnaire which asked about the location of the pain, how it had occurred, and what medications he was on.Id.at 365. However, the forms did not include a pain chart with a numeric scale.Id.at 366.

The Agent was eventually called by Mr. Gomez, who asked how tall he was and took his weight and blood pressure.Id.at 366; GX 22, at 3. Mr. Gomez then took him to an exam room. GX 22, at 4.

After a short hiatus, Respondent entered the room, introduced himself, reviewed the Agent's paperwork, and began making entries on a touch screen computer monitor. RX4, at 44. Respondent asked if "[m]ost of the pain [wa]s in his lower back" and "[h]ow it all happened?" GX 22, at 7. The Agent replied that he "use [sic] to work in a warehouse lifting boxes and moving stuff" but didn't "remember the exact day."Id.Respondent asked: "Wear and tear over time?"Id.The Agent replied: "Yeah."Id.

Following a discussion of the EMR system, Respondent asked the Agent to lean forward, placed his stethoscope on the Agent's back and asked him to take a deep breath followed by a normal breath, and asked if the pain was "down here in your lower back?"Id.at 8. The Agent replied, "Yeah, right around there."Id.Respondent then said he was going to press various places and instructed the Agent to tell him if he had pain; according to the Agent, Respondent proceeded to press various parts on the Agent's lower back. RX 4, at 44; GX 22, at 9. The Agent stated that he had "a little bit" on the left and that "in the middle it's a little worse." GX 22, at 9. Respondent then asked: "[h]ow about over here?"Id.The Agent replied: "Yeah," Respondent noted that "[i]t's significantly tighter right there"; the Agent stated: "Yeah, on the right side."Id.

Respondent then asked: "How about over here?"Id.The Agent replied: "Yeah a little more * * * right around there."Id.Respondent asked: "How about down in this area?"Id.The Agent answered "No."Id.

Respondent stated "okay" and that he had "just left [the Agent] on everything that you were on down there."Id.The Agent stated, "Okay, that's fine."Id.Respondent added: "Okay, I usually don't try to mess with it * * *. you know, try to play with it * * * unless I'm trying to increase it or whatever."Id.The Agent replied: "No problem."Id.

Respondent then stated: "Alright we have to have a plan at some point, okay? Cause you're not going to be able to be on these meds for the rest of your life. You know what I mean?"Id.at 10. The Agent stated: "Okay, yeah sure * * * I hope * * * I hope not," and Respondent told the Agent "[y]ou're all set."Id.Respondent then escorted the Agent to the receptionist's desk and the receptionist gave the Agent prescriptions for 180 tablets of oxycodone 30mg and 30 tablets of Xanax 2mg, each of which bore the signature of Respondent. RX 4, at 45; GX 23.

The oxycodone prescription listed diagnoses of "[l]umbar lumbosacral disc degeneration" and "lumbar disc displacement." GX 23. The Xanax prescription listed a diagnosis of "GENERALIZED ANXIETY DISORDER."Id.These diagnoses are also documented in the medical record as "chronic" and "active." RX 1, at 43.

However, in the psychiatric portion of the review of systems section of the medical record for the visit, Respondent wrote: "Patient denies problems with mood disturbance. No problems with anxiety." RX 4, at 41. Likewise, in the psychiatric portion of the physical examination section, Respondent noted: "Oriented with normal memory. Mental status, judgment and affect are grossly intact and normal for age."Id.at 42.10 Notably, at no point during the Agent's visit with Respondent, did Respondent (or Gomez) ask the Agent whether he had anxiety or suffered from sleeplessness.11 GX 22; Tr. 372, 377-78.

The Undercover Visit of Michael Corleone

On August 25, 2011, a TFO, using the name Michael Corleone, also visited Respondent at the Brandon clinic. Tr. 447, 464. The TFO had made two previous visits to the QCMG clinic in Bradenton (June 15 and July 20, 2011), and saw Dr. Mosley on each occasion. GX 25; RX 4, at 25 & 30.

At his first visit (to Bradenton), the TFO provided his driver's license, an MRI, and a prescription profile to the receptionist and was given several forms to complete including a patient questionnaire. RX 4, at 30-31. On the patient questionnaire, the TFO noted that he had "pain in the lower back and right shoulder," that his "[c]urrent pain level was at a two" and that his "average maximum pain level was at a five" on a one to ten scale, that the pain was "a sharp ache," which "occurs on a weekly basis," that it affected his "sleep and physical activity," and that "helpful treatments * * * included heat/ice and physical therapy."Id.at 31. The TFO further noted that the receptionist had verified his MRI.Id.at 31-32.

Shortly after paying the $300 office visit fee, the TFO was summoned by a nurse, who questioned him about his driver's license which listed his address as being in Orlando.Id.The nurse further told the TFO about the penalties for trafficking and doctor shopping, and that the clinic conducted urine drug tests, and that marijuana remains in the body for thirty days but that the clinic gave patients the option to reschedule their appointment if they tested positive.Id.at 31-32. Subsequently, the TFO was required to provide a urine sample, and after doing so, was told to return to the waiting room.Id.at 32.

Later, the nurse called the TFO to another room where he proceeded to take the TFO's vital signs, asked various personal questions, and then asked about the location of his pain, his previous clinic and his current medications.Id.Upon completion of these tasks, the nurse escorted the TFO to Dr. Mosley's office.Id.

Following a discussion of various non-medical subjects, Mosley asked the TFO where his pain was, with the TFO responding that it was in his lower back and right shoulder and that the pain was caused by playing softball.Id.at 32-33. Mosley proceeded to perform a physical exam, during which Mosley stated that the TFO's back felt tight.Id.at 33. However, while Mosley had the TFO perform several movements, the TFO did not express any discomfort with the exception of one exercise when he said his back was sore.Id.at 33-34. Mosley then had the TFO sit on the exam table and placed his stethoscope on various portions of the TFO's back and chest and told the TFO to breath.Id.at 34. Thereafter, Mosley tapped the TFO's knees and then used a light to look into the TFO's eyes, mouth and nose.Id.According to the TFO, during this time, he was turning his upper body, with no discomfort, while he conversed with Mosley.Id.However, during direct examination, the TFO testified that he believed that he told Dr. Mosley that he "had some trouble sleeping." Tr. 454. He also testified that Mosley's exam "was fairly thorough."Id.at 455.

Mosley returned to his desk and began completing paperwork. RX 4, at 34. Mosley then advised that he would not write the TFO prescriptions for 240 oxycodone and 90 alprazolam, which were the amounts the TFO had reported that he had previously received.Id.Mosley completed the paperwork, gave the file to the TFO, and told him to take it to the front desk, which the TFO did.Id.Upon arriving at the front desk, the receptionist opened the file and gave the TFO two prescriptions which were signed by Mosley: one for 199 tablets of oxycodone 30mg, with the notation "PRN pain," and one for 60 tablets of alprazolam 2mg "PRN anxiety."Id.; see alsoGX 25.

However, in the medical record for the TFO's initial visit, Dr. Mosley made no findings in the section for psychiatric history and did not check the line for anxiety. RX 1, at 5. In the family history section, which included a prompt for "mental health," Mosley wrote "none."Id.Moreover, in the diagnosis section of the chart, Mosley wrote: "mild diffuse bulge + small (r) paracentral tear L5-S1 disc," and "diffuse bulge L4-5 disc."12 Id. at 8. No diagnosis of anxiety was listed.

On July 20, 2011, the TFO returned to the Bradenton clinic and signed in. RX 4, at 25. After a short wait, the TFO was called by the receptionist, who collected the payment for the visit and gave him an appointment card for his next visit. RX 4, at 26. The receptionist also gave the TFO forms to complete, including one that asked about his current medications and pain level.Id.The TFO completed the forms and returned them to the receptionist.Id.

Thereafter, the TFO was called to a room by a nurse, who took his weightand blood pressure, and confirmed his name.Id.The nurse asked the TFO what his pain levels were with and without medication on a one to ten scale; the TFO replied that his pain was six or seven without medications and three with medications.Id.The nurse also asked the TFO if he had adverse reactions and if he used tobacco.Id.Upon completing the TFO's paperwork, the nurse took him to an exam room, which was across from Dr. Mosley's office, and left the exam room door open and placed the TFO's file in a tray on the door.Id.at 26-27.

After a patient left Dr. Mosley's office, Mosley told the TFO to enter his office and bring his file; the TFO did as instructed and gave his file to Mosley, who was seated at his desk facing a computer.Id.at 27. Mosley and the TFO had a conversation in which they discussed the TFO's clothing, beard and tattoos.Id.Mosley asked the TFO a single question about his medication and did not perform a physical examination.Id.Mosley then completed the paperwork and handed the file to the TFO; the TFO took the file to the front desk and handed it to a clinic employee.Id.The employee opened the file and gave the TFO two prescriptions; the prescriptions were for 199 tablets of oxycodone 30mg, with the notation "PRN Pain," and 60 tablets of alprazolam 2mg, with the notation "PRN anxiety."Id.; 13 GX 25.

On August 25, 2011, the TFO went to the Brandon clinic and saw Respondent. Tr. 464. The TFO signed in, and after a short wait, was called by the receptionist who asked for his driver's license and current address, and collected payment for the visit; the receptionist then provided the TFO with an appointment card for a visit of September 22, 2011. RX 4, at 39. The TFO then took a seat in the waiting room.Id.

Thereafter, the TFO was called by a male nurse to an exam room where he had his vital signs taken.Id.The nurse then told the TFO to return to the waiting room.Id.A short while later, the nurse took the TFO to another exam room and placed his file in a tray near the door.Id.

Respondent removed the TFO's file, entered the room, and introduced himself.Id.,GX 27, at 1. Respondent and the TFO discussed the reason why he had come to the Brandon clinic ("I don't know if it was just they couldn't get me in" and "[m]aybe, I told them I was thinking about moving up here"), how many times the TFO had seen Dr. Mosley ("twice"), whether the TFO lived in Orlando ("that's an old address") and where he now lived ("Bradenton"), and his employment status ("I don't work right now"), and what he formerly did for employment ("a lot of warehouse stuff" and "some heavy lifting"). GX 27, at 1-2.

Next, Respondent asked the TFO if he had insurance; the TFO said "No."Id.at 2. Respondent remarked, "[o]k, so, you're getting two hundred of these pills, that's probably about four hundred fifty dollars. How are you affording all these meds?"Id.The TFO answered that he "had some money saved up from before," and Respondent said "ok."Id.Respondent and the TFO then discussed the problem of people not showing for their appointments and the clinic's policy for no shows.Id.at 2-3.

Respondent then discussed the TFO's MRI, stating:

Id.at 4. The TFO replied "ok, thanks," and Respondent added: "we'll, you know if it comes down to it later, down the road that we need to bring you down a bit, we'll do it. But (at which point the TFO interjected with "ok") I don't think we'll need to. The only reason why we would need to is because if the government makes me."Id.

The TFO replied, "ok, gotcha, gotcha," Respondent stated "So, um," and the TFO stated: "Yeah, you guys get people in and out quick here. It's nice."Id.Respondent said "yeah" and that "we try not to play around," and after the TFO said, "Yeah," Respondent asked the TFO if he "ha[d] any questions for me?"Id.The TFO answered "nope."

Respondent then asked to feel the TFO's "low back"; the TFO stood up, and Respondent pressed against the TFO's lower back in several locations, asking if it was painful.Id.;RX 4, at 39-40. The TFO replied, "Yeah. It's a little sore," and then agreed with Respondent that it was "more on the right." GX 27, at 4.

The TFO was instructed to sit in a chair, and raise each leg separately and then simultaneously.Id.Respondent then asked, "How's your range of motion, pretty good?"Id.The TFO replied "yeah, it gets better when it loosens up throughout the day. Like in the mornings, the mornings always rough."Id.Respondent said "[r]ight," and the TFO added: "And if I sit down fo

Dated: August 29, 2012. Michele M. Leonhart, Administrator.
ACTION: 33For the same reasons which led me to order the immediate suspension of Respondent's registration, I conclude that the public interest necessitates that this Order be effective immediately. 21 CFR 1316.67