Maryland State Board of Dental Examiners v. Tabb

WOODWARD, J. On August 3, 2005, appellant, Maryland State Board of Dental Examiners (“the Board”) charged appellee, Deborah K. Tabb, DDS, with violating Maryland Code (1981, 2005 Repl. Vol.), § 4-315(a)(3), (6), (16), (18), and (22) of the Health Occupations Article (“H.O.”), COMAR 10.44.23.02, and § 5B of the American Dental Association’s Principles of Ethics and Code of Professional Conduct (“ADA Code of Conduct”) regarding the treatment of 29 patients. Prior to the hearing, the administrative law judge (“ALJ”) granted the motion of the Board’s administrative prosecutor (“the prosecutor”) to exclude appellee’s expert witness summaries and testimony, ³⁵⁷ because the summaries did not comply with the applicable discovery regulation, COMAR 10.44.07.08(B). After a 10-day hearing drawn out over the course of several months, the ALJ concluded on September 24, 2007, that appellee violated H.O. § 4-315(a)(6), (16), (18), and ADA Code of Conduct § 5B, but did not violate H.O. § 4-315(a)(3), (22), and COMAR 10.44.23.02.

In an opinion issued on March 2, 2008, the Board, however, upheld all of the charges brought against appellee and ordered, among other things, that appel-lee be reprimanded and placed on eighteen months’ probation. On November 26, 2008, the Circuit Court for Montgomery County (Debelius, J.) reversed the Board’s final opinion and order and remanded the case to the Office of Administrative Hearings (“OAH”) for a new hearing on the charges relating to the alleged violations of H.O. § 4-315(a)(6), (16), (18), and ADA Code of Conduct § 5B. This timely appeal followed. The Board presents two questions for our review, which we have rephrased: I. Did the Board err or abuse its discretion in adopting the ALJ’s ruling that excluded appellee’s expert witness summaries and testimony, and if so, did such error require vacating the Board’s finding of violations of H.O. § 4-315(a)(6), (16), (18), and ADA Code of Conduct § 5B?

II

Was there substantial evidence to support the Board’s finding of violations of H.O. § 4-315(a)(3) and (22) and COMAR 10.44.23.02? For the reasons stated herein, we shall affirm the judgment of the circuit court. BACKGROUND Upon receiving allegations of incompetent dental treatment, unnecessary dental procedures, and failure to secure informed consent, the Board initiated an investigation of appellee’s treatment of 29 patients in her Bethesda, Maryland office. On August 3, 2005, the Board charged appellant with violating the ³⁵⁸ following provisions of the Maryland Dentistry Act, H.O. § 4-315(a): (3) Obtains a fee by fraud or attempts to obtain a fee by fraud; (6) Practices dentistry in a professionally incompetent manner or in a grossly incompetent manner; (16) Behaves dishonorably or unprofessionally, or violates a professional code of ethics pertaining to the dentistry profession; (18) Violates any rule or regulation adopted by the Board; (22) Knowingly submits to a third party any claim form, bill, or statement which contains any misleading, deceptive, false, incomplete, or fraudulent representation asserting a fee which is greater than the fee that the dentist usually accepts as payment in full for any given dental appliance, procedure, or service[.] The Board also alleged that appellee violated ADA Code of Conduct § 5B, which provides: “Dentists shall not represent the fees being charged for providing care in a false or misleading manner.” Finally, the Board claimed that appellee violated COMAR 10.44.23.02, which states; in relevant part: “Unprofessional conduct includes the removal of sound or serviceable mercury amalgam restorations by a dentist without obtaining appropriate informed consent from the patient....” On August 9, 2005, the OAH sent a Notice of In-Person Prehearing Conference to inform the parties that a pre-hearing conference was scheduled for November 22, 2005.

According to the instructions accompanying the notice, the parties were required, fifteen days before the pre-hearing conference, to file with the OAH and serve on each other a pre-hearing conference statement that included, among other ³⁵⁹ things, “[the] name and curriculum, vitae of any expert witness” testifying and “[a] summery [sic] of the expert witness’s testimony, including the opinion offered and the factual basis(es) and the reason(s) underlying the opinion[.]” The prosecutor mailed her pre-hearing conference statement to appel-lee on November 4, 2005, and filed it with the OAH on November 8, 2005. Appellee provided her pre-hearing conference statement to the prosecutor on November 7, 2005, and filed it with the OAH that same day. Included in appellee’s statement were the names of two expert witnesses, Dr. Michael Pollowitz and Dr. Charles D. Kirksey, whom appellee intended to call at the hearing, and the following summary of their expected testimony: 1. Dr. Michael Pollowitz is an expert in the field of general dentistry.

He will testify regarding his review of the charts, radiographs, his on-site visit with [appellee] and observation of her patient care. It is anticipated that Dr. Pollowitz will testify regarding his training and experience in the field of general dentistry, his review of the allegations in the Board Complaint, and [the Board’s expert witness’s] comments thereon as well as his review of all applicable charts and radiographs. It is anticipated that Dr. Pollowitz will testify that [appellee]’s dental practices do not obtain fees by fraud, nor did her practices constitute an attempt to obtain a fee by fraud. He will testify that he observed no signs of professional incompetence when he visited [appel-lee]’s office; viewing both her patient management and clinical skills.

He will testify that her informed consent practices comply with the applicable standard of care and that he does not see any history of [appellee] recommending amalgam restorations for removal for mercury content or other systemic health related reasons. Dr. Pollowitz will testify that treatment planning or opinions regarding need for treatment cannot be based on radiographs alone if such an opinion fails to factor in the clinical exam findings. Dr. Pollowitz will testify that the treatment performed on patients A through CC was necessary and appropriate. Dr. ³⁶⁰ Pollowitz will testify that there is no basis for the Board’s complaint of overaggressive restoration of teeth and that his clinical observation of [appellee] supports his contention that her restorative work is excellent and meets or exceeds the standard of care.

He will testify that her treatment planning is appropriate and that patients are provided with all options, associated risks and benefits, and that the patients themselves choose how aggressive to be in pursuing their dental health and esthetic needs, and give informed consent for all treatment. He will testify that her use or recommendation of irrigation after root planing and curettage was appropriate and that he sees no deliberate or intentional upcoding. He will testify regarding the staff practices with respect to coding and billing in light of [appellee]’s fee schedule costs. Dr. Pollowitz will testify that he sees no evidence of improperly polymerized composites and that failure on a given case does not constitute an inherent problem requiring any remedial action and can and does occur within the standard of care.

Dr. Pollowitz will testify that the use of sealants in adults is appropriate for preventative treatment and that any adult presented with that option may choose to pursue such prophylactic care. 2. Dr. Charles D. Kirksey is an expert in the field of general dentistry. Dr. Kirksey will testify regarding his review of the patient chart and radiographs, his training and expertise in the field of dentistry, and his finding as to each allegation made by the Board and [the Board’s expert] as outlined hereinabove. He will testify that [appellee] complied with the applicable standard of care in her treatment of the patients, did not attempt to or obtain a fee by fraud, practiced in a professionally competent manner, appropriately treatment planned patients, did not improperly remove amalgam restorations for mercury content or other systemic health reasons, was not overaggressive in her treatment and/or treatment planning, made appropriate recommendations to patients regarding treatment planning, used irrigation appropriately, did not intentionally upcode, did not improperly polymerize composites, appropriately ³⁶¹ used polymerized composites, and appropriately recommended sealants for adults, and obtained patient consent for all procedures.

On November 18, 2005, the prosecutor faxed and mailed to appellee’s counsel a Motion to Exclude Respondent’s Expert Reports and Testimony, asserting that appellee’s summary of her experts’ anticipated testimony in the pre-hearing conference statement did not comply with the discovery regulations. Specifically, the prosecutor argued that appellee’s expert witness summary did not adhere to COMAR 10.44.07.08(B)(1), which requires the parties to provide “[a] detailed written report summarizing the expert’s testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion,” because “counsel representations regarding the experts’ testimony is not an expert report.” (Emphasis in original). The prosecutor also claimed that the summary was inadequate, because it “fail[ed] to state the opinion offered regarding any of the 29 patients whose care [wa]s at issue, much less the factual basis and reasons underlying those opinions, as is required by [COMAR] 10.44.07.08(B)(1).” In her opposition, which was faxed to the prosecutor and the ALJ on November 21, 2005, appellee claimed that, although her expert witness summary adequately presented the expected testimony of her experts, appellee was unable to provide a more detailed submission because the prosecutor had “exclusive possession and control” of original dental x-rays and would only allow appellee’s experts to review them on the Board’s premises. Appellee maintained that the copies of the x-rays provided by the prosecutor were “insufficient for purposes of the experts forming their final opinions.” Additionally, appellee stated that, because she did not receive the Notice of In-Person Prehearing Conference until November 7, 2005, which was the deadline for submitting pre-hearing conferences statements, the prosecutor consented “to a late submission of exhibits,” which included appellee’s expert witness reports.

Appellee then argued that, because the hearing was not scheduled until March of 2006 and COMAR 10.44.07.08(B) allowed mandatory discovery to be exchanged up to 45 days ³⁶² before the scheduled hearing date, the ALJ should compel the prosecutor to turn over the original x-rays for review by appellee’s experts and provide appellee an opportunity to submit supplemental expert witness reports by January 16, 2006. Appellee also provided with her opposition a copy of Dr. Pollowitz’s September 13, 2005 report. At the pre-hearing conference on November 22, 2005, the ALJ reserved ruling on the prosecutor’s motion, allowed ap-pellee to file a supplemental opposition, and provided an opportunity for the prosecutor to reply. Appellee filed her supplemental opposition on December 5, 2005, and repeated her request that she have a chance to present a supplemental expert report and that the ALJ require the prosecutor to turn over the original x-rays.

Appellee repeated that the prosecutor previously “indicated that she would not object to later submission of exhibits.” Appellee claimed that the prosecutor would not be prejudiced by such relief because the hearing was not scheduled until March of 2006. Included in appellee’s supplemental opposition were e-mails from Dr. Kirksey in which he stated that he could not opine on the Board’s charges without clearer reproductions of patient x-rays and photographs. Dr. Kirksey also noted that traveling to the Board’s offices to review the original records would cause him to close down his office, which would result in disproportionate inconvenience for himself and considerable expense for appellee. Appellee attached Dr. Kirksey’s curriculum, vitae to the supplemental opposition.

The prosecutor faxed and mailed its reply to appellee on December 15, 2005. According to the prosecutor, appellee’s request for the Board to produce the original x-rays and allow supplemental expert reports to be filed 14 days thereafter “exceed[ed] both the [OAH’s] and the [Board’s] regulations regarding discovery” and was “contrary to established Board policy ... to ensure the integrity of evidence to be provided at an administrative hearing.” The prosecutor, however, did not contest appellee’s representation of an agreement consenting to the late filing of exhibits. The prosecutor also did not oppose a modification of the deadline, but rather took issue ³⁶³ with the length of appellee’s requested extension, because the prosecutor would then have had only three weeks prior to the administrative hearing to review any additional submissions. In a written opinion, dated January 2006, 1 the ALJ granted the prosecutor’s motion, struck appellee’s expert witness summaries, and ordered that appellee’s experts could not testify at the hearing.

The ALJ also rejected appellee’s request for the original x-rays and refused to allow appellee to file supplemental expert witness reports. The ALJ first determined the insufficiency of appellee’s expert witness summaries under COMAR 10.44.07.08(B): 19. WHEREAS, [appellee] argued that her pre-hearing statement “clearly states” her experts’ areas of potential testimony; and, 20. WHEREAS, however, COMAR 10.44.07.08(B) requires “a detailed written report summarizing the expert’s testimony, which includes the opinion offered and the factual basis and opinion underlying the opinion;” and, 21.

WHEREAS, the summary of [appelleejs experts’ testimony found in her pre-hearing statement is insufficient to satisfy the requirement on COMAR 10.44.07.08(B)(1)(b) and, therefore, [appellee] has failed to comply with the requirements of COMAR 10.44.07.08(B)[.] Regarding appellee’s demand for the original x-rays, the ALJ ruled that under the applicable regulations, the Board only had to provide copies of records and not produce the originals to an opposing party. The ALJ concluded that the language of COMAR 10.44.07.08(B) demanded that it grant the prosecutor’s motion and deny appellee’s request: 32. WHEREAS, ... [appellee]’s argument that her failure to comply with the mandatory requirements of CO-MAR 10.44.07.08(B) should be excused because [appel-lee]’s counsel did not receive the notice of the pre-hearing conference before the date on which the man ³⁶⁴ datory report was due and because the Board waived the time requirement set forth in COMAR 10.44.07.08(B) is not supported by fact or law; and 33. WHEREAS, [appellee] also argued that, because the hearing is scheduled for March 7-9, 200[6], the Motion should be denied and an order drafted that compels that she provide sufficient experts’ reports to the Board at least 45 days before the hearing “as contemplated by the Code ...;” and, 34.

WHEREAS, however, COMAR 10.44.07.08 is unambiguous, clearly stating that the remedy for non-compliance “shall be” the exclusion of the party’s expert’s report and testimony; and, * * * 37. WHEREAS, when nothing in the context of a statute or regulation that uses the word “shall” indicates directory meaning, as is the case here, the word “shall” must be given a mandatory meaning; and, 39. WHEREAS, the Board and, therefore, the [OAH], is bound by the mandatory language of COMAR 10.44.07.08(B)[.] (Citations omitted). On January 12, 2006, appellee filed a motion for reconsideration, to which the State responded on January 19, 2006.

After appellee filed a reply to the opposition on January 27, 2006, the ALJ denied the motion for reconsideration on February 14, 2006. The hearing was held on August 22, 23, and 24, 2006; November 2, 3, 6, and 7, 2006; and June 4, 5, and 25, 2007. The ALJ issued a 225 page proposed decision on September 24, 2007. After making extensive findings of fact, the ALJ provided his legal recommendations.

The ALJ first determined that appellee violated H.O. § 4-315(a)(6): Md.Code Ann., Health Occ. § 4-315(a)(6) authorizes the Board to discipline a dentist who “[practices dentistry in a ³⁶⁵ professionally incompetent manner or in a grossly incompetent manner.” I have found that [appellee] failed on a number of occasions to document the necessity for certain treatment and in fewer instances that her treatment was deficient.... [N]one of the findings constitutes unmitigated or glaringly obvious inadequacy and, therefore, I decline to conclude that [appel-lee] practiced dentistry in a grossly incompetent manner. ... I conclude that [appellee] violated Md.Code Ann., Health Occ. § 4-315(a)(6) by her practice of incompetent dentistry. (First alteration in original) (footnote omitted). The ALJ then concluded that appellee violated ADA Code of Conduct § 5B: Section 5B of the American Dental Association’s Code of Professional Conduct states: “Dentists shall not represent the fees being charged for providing care in a false or misleading manner.”...

It is beyond cavil that [appellee] violated Section 5B, when she reported to the insurance carriers of patients BB, H, O, R, V, X, and Y that she treated them with porcelain crowns fused to high noble metal. * * * Section 5.B prohibits dentists from representing their fees for a service in a false or misleading manner. [Appel-lee] represented her fee for what she claimed was an occlusal adjustment — limited. The procedure she actually performed very well may have been within the scope of an occlusal adjustment — limited under the Code. Based on my finding that the procedure was cosmetic smoothing, however, it is clear her representations to the insurance carriers that she performed an occlusal adjustment — limited on Patient F’s, Patient U’s, and Patient Y’s teeth were either false or misleading. I conclude, therefore, that [appellee] also violated Code of Professional Conduct § 5.B when she ³⁶⁶ performed cosmetic smoothing and represented to insurance carriers that she had performed an occlusal adjustment— limited.

The ALJ also determined that appellee violated H.O. § 4-315(a)(16) and (18): Md.Code Ann., Health Occ. § 4-315(a)(16) states that a dentist may be disciplined if she “[bjehaves dishonorably or unprofessionally, or violates a professional code of ethics pertaining to the dentistry profession.” Solely by virtue of the findings and conclusions discussed above, and based on my finding that [appellee] treated minor Patient I without obtaining consent from the patient’s parent or legal guardian, I also conclude that [appellee] violated Md.Code Ann., Health Occ. § 4-315(a)(16). Md.Code Ann., Health Occ. § 4-315(a)(18) states that a dentist may be disciplined if she “[violates any rule or regulation adopted by the Board.” Solely by virtue of the findings and conclusions discussed above, I also conclude that [appellee] violated this subsection of Md.Code Ann., Health Occ. § 4-315(a)(18). (Some alterations in original). The ALJ, however, refused to find appellee in violation of all of the charges brought by the prosecutor.

According to the ALJ, appellee did not violate H.O. § 4-315(a)(3): Md.Code Ann., Health Occ. § 4-315(a)(3) (2005) authorizes the Board to discipline a dentist who “[o]btains a fee by fraud or attempts to obtain a fee by fraud.” * * * There is no direct evidence of purpose or intent. The Board is correct, however, that purpose or intent may be inferred from the circumstances of an actor’s conduct---- There is nothing about the circumstances here from which one reasonably can infer a purpose or intent to defraud insurance carriers or patients.... The circumstances here simply do not reasonably point to fraud. Accordingly, I conclude that [appellee] did not violate Md.Code Ann., Health Occ. § 4-315(a)(3). ³⁶⁷ (First alteration in original).

The ALJ also concluded that appellee did not violate H.O. § 4-315(a)(22): Md.Code Ann., Health Occ. § 4-315(a)(22) states that a dentist may be disciplined if she “[kjnowingly submits to a third party any claim form, bill, or statement which contains any misleading, false, incomplete or fraudulent representation asserting a fee which is greater than the fee that the dentist usually accepts as payment in full for any given dental appliance, procedure, or service.” As discussed above, [appellee] submitted a false claim to several patients’ insurance carriers for the use of high noble crowns when she had actually used non-precious crowns. Based on Resp. Exh. # 34J and [appellee]’s unrefuted testimony, however, the fee she charges for high noble and non-precious crowns is the same. A necessary element of a violation of § 4-215(a)(22) is the submission of a false claim asserting a fee which is greater than the fee the dentist usually accepts as payment in full.

The Board has not proven that necessary element of the statute. Also, as discussed above, I have found that [appellee] submitted claims on three occasions to patients’ insurance carriers that she performed occlusal adjustment — limited when she had performed cosmetic smoothing. As discussed above, the Board has the burden to prove the elements of this statutory action. The Board has not proved what [appellee] charges for cosmetic smoothing.

Further, although Dr. Magaziner testified that cosmetic smoothing and occlusal adjustment — limited are different procedures, I am not satisfied that whatever specific procedure [appellee] performed was not within the scope of how the Code defines occlusal adjustment — limited. Based on these reasons, I decline to conclude that [appel-lee] violated Md.Code Ann., Health Occ. § 4-315(a)(22) based on her claims to insurance carriers for the use of high noble crowns and occlusal adjustments — limited. (First alteration in original). Lastly, the ALJ determined that appellee did not violate COMAR 10.44.23.02: ³⁶⁸ COMAR 10.44.23.02 provides: .02 Amalgam Restoration.

Unprofessional conduct includes the removal of sound and serviceable mercury amalgam restorations by a dentist without obtaining appropriate informed consent from the patient, which includes but is not limited to advising the patient that: A. The National Institutes of Health has determined that there are no verifiable systemic health benefits resulting from the removal of mercury amalgam restorations; and B. The removal of sound and serviceable mercury amalgam restorations may significantly affect the integrity of the tooth. I have found that [appellee] failed to obtain written informed consent and failed to document that she obtained verbal informed consent for the replacement of amalgam restorations with composite restorations for her treatment of patients A, B, AA, E, H, J, K, M, N, O, V, W, X, Y, and Z. By its on [sic] terms, COMAR 10.44.23.02 requires “appropriate informed consent from a patient” only when mercury amalgam restorations are sound and serviceable. Based on the record before me, I have declined to find that the amalgam restorations that [appellee] replaced were sound and serviceable. I conclude, therefore, that [appel-lee] did not violate COMAR 10.44.23.02 Based on these recommendations, the ALJ believed appellee should be sanctioned with a formal reprimand, placed on eighteen months of probation, required to take courses in dental billing and coding, restorative care, and documentation of dental treatment, and complete a Board practice review.

Both parties filed and responded to exceptions to the ALJ’s proposed decision. The Board held a hearing on the exceptions on December 5, 2007, and issued its opinion and final ³⁶⁹ order on March 2, 2008. After adopting the findings of fact set forth in the ALJ’s proposed decision, the Board upheld the ALJ’s recommendations regarding appellee’s violations of H.O. § 4 — 315(a)(6), (16), and (18): [Appellee] excepts to the ALJ’s findings that she violated H.O. § 4-315(a)(6) ...; (16) ... and (18).... [Appellee] argued that the evidence was insufficient to support such findings. The [prosecutor] on the other hand, argues, in the face of evidence to the contrary, that the ALJ erred in finding that [appellee] violated the aforementioned provisions in only a few specific instances.

The [prosecutor] correctly argues that where, as here, the ALJ gives little weight to the testimony of the [prosecutor’s expert witness for non-demeanor based reasons, [] the Board is free to apply its experience, technical competence, and specialized knowledge and to draw its own conclusions from the record. In so doing, the Board sustains the [prosecutor]’s Exception and overrules [appellee]’s Exception. The Board applies this principle and exercises its statutory prerogative in its evaluation of the record in finding, among other things and in addition to the ALJ’s findings, that [appellee] treated patients without documentation, performed treatment without documented dental necessity, and incompetently performed restorations. [Appellee] violated the standard of care when she treated twenty-six patients and failed to properly document the use of anesthetic agents on a single one. The Board views replacement of sound and serviceable amalgams in thirteen patients without written informed consent to be nothing less than unprofessional conduct, a violation of COMAR 10.44.23.02.

Although the ALJ found that [appellee] filed false claims, he found, contrary to the Board’s determination, no unprofessional conduct. The ALJ’s out of hand rejection of the testimony of the Board’s expert and his reliance on [appellee]’s self serving testimony does not bode well for protecting the public from substandard care. A glaring example is [appellee]’s failure to properly document the use of anesthetic agents. ³⁷⁰ The Board also agreed with the ALJ that appellee violated ADA Code of Conduct § 5B. The Board, however, overruled the ALJ’s conclusion that appellee did not violate H.O. § 4-315(a)(3) and (22).

The Board presented the following analysis in support of its decision: The [prosecutor] excepts to the ALJ’s failure to find that [appellee] obtained feeds by fraud, violations of H.O. § 4-315(a)(3) and (22). The ALJ found that [appellee] represented fees in either a false or misleading manner in violation of § 5B of the ABA [sic] Principles of Ethics and Code of Professional Conduct; yet he rejected the charged violations of H.O. § 4-315(a)(3) and (22), finding that she did not obtain fees by fraud nor file false and misleading claims. The Board finds to the contrary, concurring with the [ ] [p]rosecutor’s argument that the ALJ applied the incorrect standard in rejecting the charged violations. Adding further to the Board’s consternation with the ALJ’s [sic] is his acceptance of [appellee]’s shifting blame for incorrect billing to her employees.

The responsibility rests with [appellee]. The Board sustains the [prosecutor’s Exception---- The Board also determined, contrary to the ALJ recommendation, that appellee violated COMAR 10.44.23.02. The Board thus sustained all of the charges against appellee and ordered, among other things, that appellee be reprimanded, serve probation for eighteen months, obtain a Board approved practice reviewer to conduct quarterly practice reviews during the probationary period, satisfactorily complete courses in restorative care, documéntation of treatment, and dental billing and coding, and provide to the Board copies of the informed consent appellee uses with her patients. On April 17, 2008, appellee filed a Petition for Judicial Review in the Circuit Court for Montgomery County.

The circuit court held a hearing on November 21, 2008. On November 26, 2008, the circuit court issued its opinion and order reversing the Board’s final order and remanding for a ³⁷¹ new hearing before the ALJ the determination of whether appellee was in violation of H.O. § 4 — 315(a)(6), (a)(16), (a)(18), and the ADA Code of Conduct § 5B. The circuit court first held that the ALJ erroneously concluded that appellee’s written expert witness reports did not comply with COMAR 10.44.07.08(B)(1)(b). According to the court, appellee provided a sufficient summary of her experts’ expected testimony and the basis of their opinions.

The court also noted that the ALJ improperly refused to grant appellee additional time to present a supplemental report. The court concluded that the ALJ’s exclusion of appellee’s expert witness and testimony constituted a prejudicial error of law. As a result, the ALJ’s conclusions that appellee violated H.O. § 4-315(a)(6), (16), (18), and ADA Code of Conduct § 5B “were tainted” by the exclusion of appellee’s experts’ reports and testimony. The circuit court also determined that the Board erred when it rejected the recommendation of the ALJ that appellee did not violate H.O. § 4-315(a)(3).

The court noted that the Board failed to state the facts upon which it relied in making its decision and that the ALJ’s factual findings, which the Board expressly adopted, did not support its conclusion. The court found the same defect infusing the