664 F.3d 808 (10th Cir. 2011), 10-9556, MacKay v. Drug Enforcement Admin.

Docket Nº:10-9556.
Citation:664 F.3d 808
Opinion Judge:SEYMOUR, Circuit Judge.
Party Name:Dewey C. MacKAY, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Respondent.
Attorney:Peter Stirba (Nathan A. Crane and Miles W. Millard with him on the briefs) of Stirba & Associates, Salt Lake City, UT, for Petitioner. Anita J. Gay, Attorney, United States Department of Justice, Criminal Division, Narcotic and Dangerous Drug Section, Washington, D.C., for Respondent.
Judge Panel:Before BRISCOE, Chief Judge, and SEYMOUR, and LUCERO, Circuit Judges.
Case Date:December 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 808

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

Dewey C. MacKAY, M.D., Petitioner,

v.

DRUG ENFORCEMENT ADMINISTRATION, Respondent.

No. 10-9556.

United States Court of Appeals, Tenth Circuit.

December 23, 2011

Page 809

Peter Stirba (Nathan A. Crane and Miles W. Millard with him on the briefs) of Stirba & Associates, Salt Lake City, UT, for Petitioner.

Anita J. Gay, Attorney, United States Department of Justice, Criminal Division, Narcotic and Dangerous Drug Section, Washington, D.C., for Respondent.

Before BRISCOE, Chief Judge, and SEYMOUR, and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Dewey C. MacKay, M.D., petitions for review of a decision of the Deputy Administrator of the Drug Enforcement Administration (" DEA" ) revoking his registration to dispense controlled substances and denying all pending requests for renewal or modification.1

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Dewey C. MacKay, M.D., 75 Fed.Reg. 49,956 (DEA Aug. 16, 2010). Because the DEA's decision is supported by substantial evidence and is not arbitrary or capricious, we deny the petition.

I.

Dr. MacKay is a medical doctor who, at the time of the underlying proceedings, held a DEA certificate of registration that authorized him to dispense controlled substances in schedules II through V.2 He also held a physician's license issued by the State of Utah and has been a board-certified orthopedic surgeon for over thirty years.

Around 2001, Dr. MacKay underwent cardiac bypass surgery. Thereafter, he gradually reduced the number of surgeries he performed, until he stopped performing surgeries altogether around 2006. As Dr. MacKay decreased his orthopedic surgical practice, he began treating chronic pain patients. By 2007, approximately eighty-five percent of his practice involved pain patients. This case concerns his prescribing behavior from 2005 to early 2009, when his practice focused primarily on chronic pain management.

A.

The DEA began investigating Dr. MacKay after receiving information from local authorities that he was issuing unlawful prescriptions for controlled substances. As part of this investigation, the DEA interviewed several of Dr. MacKay's former patients and executed search warrants on his office in June 2008 and January 2009, seizing patient records and related documents. In addition, the DEA gained cooperation of patients M.R. and K.D., both of whom agreed to record undercover visits with Dr. MacKay. They recorded a total of eight in-person visits and one phone call with Dr. MacKay, from October 2007 to December 2008.3

On February 26, 2009, the Deputy Administrator of the DEA issued an order to show cause why the DEA should not revoke Dr. MacKay's registration on the ground that his continued registration is inconsistent with the public interest. See 21 U.S.C. §§ 823(f); 824(a)(4). The order stated that Dr. MacKay's registration would be immediately suspended, pending the show cause proceedings.4

The order to show cause alleged that from " June 2005 to the present," Dr. MacKay " issued numerous purported prescriptions for controlled substances without a legitimate medical purpose and outside the usual course of professional practice." MacKay, 75 Fed.Reg. at 49,956 (quoting Order to Show Cause at 1-2) (internal quotation marks omitted). As factual support, the order asserted, among other things, that Dr. MacKay had issued prescriptions for controlled substances to a patient even after she told him she shared

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her prescription drugs with another person, had exchanged prescription drugs for sexual favors, had issued prescriptions for controlled substances without a legitimate medical purpose and without conducting appropriate diagnostic evaluations, and had been prescribing extraordinarily large amounts of highly addictive opioids.

Dr. MacKay filed a motion for a temporary restraining order in federal district court, seeking reinstatement of his registration. After holding a hearing, the district court stayed the immediate suspension of Dr. MacKay's registration pending a final administrative decision on the underlying order to show cause. Based on the limited evidence then in the record, the court held the DEA had not demonstrated that Dr. MacKay's continued registration would result in " imminent danger to public health or safety," as required for immediate suspension. See 21 U.S.C. § 824(d).

B.

After the district court issued its order, an administrative law judge (" ALJ" ) held a hearing at which both sides presented evidence. The DEA's evidence included testimony of cooperating patients M.R. and K.D., audio-recordings and transcripts of their undercover conversations with Dr. MacKay, medical records of several patients, and testimony of Dr. Bradford Hare, a medical expert.

M.R. was Dr. MacKay's patient from May 2004 through January 2008. When she began seeing Dr. MacKay, it was for " wrist pain." Later her complaints shifted to " back pain." However, she testified that her pain complaints were fabricated. Instead, she went to see Dr. MacKay to obtain prescriptions for Lortab to use for recreational purposes. According to M.R., Dr. MacKay conducted no examination on her first visit, except for feeling her wrist for about ten seconds. Similarly, when she feigned back pain, the extent of Dr. MacKay's examination was to ask her to bend over and stand up again. He never ordered any tests or X-rays to diagnose or verify her claimed ailments. M.R. explained that during her appointments, she was not asked to discuss her pain at all before Dr. MacKay gave her prescriptions for controlled substances. She mentioned her pain to him only two or three times over several years. Yet she consistently received prescriptions for controlled substances including Lortab, Valium, and Xanax.

M.R.'s recorded undercover appointments corroborate her testimony. During her first such appointment, M.R. was accompanied by an undercover DEA agent posing as her friend, " Rebecca." Rebecca and M.R. attempted to obtain a Lortab or OxyContin prescription for Rebecca. Dr. MacKay refused to write a prescription for her without a referral from her doctor and an appointment. The entire appointment focused on whether Dr. MacKay would write a prescription for Rebecca; there was no discussion of M.R.'s pain or medical condition. Nevertheless, M.R. emerged from the appointment with a prescription for ninety Lortab with a refill.

During M.R.'s second undercover visit, Dr. MacKay asked her, " How are you today?" She replied, " Good. How are you?" Dr. MacKay did not ask any questions about her pain, but said, " You want a refill again?" She replied, " Yeah." MacKay, 75 Fed.Reg. at 49,965.5 During this

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appointment, M.R. told Dr. MacKay that she had shared some of her drugs with Rebecca. She asked him whether that was " okay to do." Dr. MacKay told her that was " against the law.... Just don't, uh, don't tell me about it." Id. Despite knowing that she was diverting drugs, Dr. MacKay gave her another prescription for ninety Lortab with one refill.

At M.R.'s third undercover appointment, Dr. MacKay told her that although he had been seeing her about once a month, she needn't come back for two months because he was going to give her a prescription and a refill. He then asked her, " Lortab ten?" M.R. replied, " Yeah." Id. After the sound of paper tearing from a pad, Dr. MacKay asked her, " You been doing okay?" M.R. said, " Yeah. I'm doing good." Id. There was no discussion of M.R.'s pain or the efficacy of her medication and no physical examination. She left the appointment with a prescription for ninety Lortab and a refill.

M.R.'s fourth undercover visit was about a month later. Dr. MacKay began the appointment by asking how she was doing. She replied, " Good. How are you?" He said, " Good," then asked her, " Lortab ten # 90?" Id. After she said yes, he also asked her if she wanted a refill, to which she again replied, " Yes." Dr. MacKay asked M.R. whether she was " getting pills from any other doctor," and whether she was " abusing them, selling them, buying them" or " doing anything illegal?" Id. (alteration omitted). She said she was not. He did not mention that she had come back a month earlier than she was supposed to. He did not inquire about her pain, nor does the transcript suggest a physical exam was performed. Nevertheless, M.R. again emerged from the appointment with a Lortab prescription and a refill.

Dr. Hare, the DEA's expert witness, reviewed the transcripts of M.R.'s recorded appointments. As he testified, M.R.'s appointments were more social than medical with little, if any, discussion of her medical condition. Dr. Hare compared the transcripts of M.R.'s undercover visits with her patient records for those appointments. He explained that although the medical records indicated physical examinations were conducted during her appointments, it appeared from the transcripts that no such exams occurred.

According to Dr. Hare, although the usual course of professional practice requires a physician to document the justification for switching between controlled substances, Dr. MacKay failed to provide such justification when changing M.R.'s prescriptions. Dr. Hare testified that Dr. MacKay's records were superficial, with little useful information beyond the nature of her complaint. They did not even indicate whether his treatment improved her condition. Dr. Hare also noted that documents in M.R.'s file show Dr. MacKay was aware she was receiving duplicate prescriptions for controlled substances from another doctor, suggesting M.R. was overusing or abusing her medication. Despite these indications of diversion, Dr. Hare saw no changes in Dr. MacKay's prescribing practices to address the problem. In Dr. Hare's view...

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