Pelham v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/21/12. (SAC )
2012 Sep-21 AM 09:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
JONATHAN W. PELHAM
Commissioner of the Social
CIVIL ACTION NO.
On March 28, 2008, the claimant, Jonathan Pelham, applied for disability insurance
benefits under Title II of the Social Security Act and supplemental security income under Title
XVI. The claimant alleges disability commencing on March 23, 2008. The Commissioner initially
denied the claim. The claimant filed a timely request for a hearing before an Administrative Law
Judge, and the ALJ held a hearing on December 1, 2009. (R. 26). In a decision dated January 12,
2010, the ALJ found that the claimant was not disabled as defined by the Social Security Act
and, thus, was ineligible for both disability insurance benefits and supplemental security income.
(R. 19). On February 23, 2011, the Appeals Council denied the claimant’s request for review;
consequently, the ALJ’s decision became the final decision of the Commissioner of the Social
Security Administration. (R. 1). The claimant has exhausted his administrative remedies, and this
court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated
below, this court reverses and remands the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issue1 for review: whether the ALJ improperly
applied Social Security Ruling 82-59 in denying the claimant’s claims for “failure” to follow
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham
v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but also must view the
Although the claimant presents other issues, because of the court’s ruling on this issue,
the court need not address other issues raised.
record in its entirety and take account of evidence that detracts from the evidence on which the
ALJ relied. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person cannot “engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To make this determination, the Commissioner employs a five-step, sequential
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. pt. 404, subpt. P, app. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
Refusal to follow prescribed medical treatment without a good reason will preclude a
finding of disability. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988); 20 C.F.R. §
416.930(b). For an ALJ “to deny benefits on the ground of failure to follow prescribed treatment,
[he] must find that had the claimant followed the prescribed treatment, the claimant’s ability to
work would have been restored.” Dawkins, 848 F.2d at 1213. Moreover, “when an ALJ relies on
noncompliance as the sole ground for the denial of disability benefits, and the record contains
evidence showing that the claimant is financially unable to comply with prescribed treatment, the
ALJ is required to determine whether the claimant was able to afford the prescribed treatment.”
Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); see also Dawkins, 848 F.2d at 1214.
Poverty excuses a claimant’s failure to follow prescribed medical treatment. Dawkins, 848 F.2d
The ALJ is further bound by Social Security Ruling 82-59. SSR 82-59, 1982 WL 31384,
*1 (1982). Under SSR 82-59, an ALJ must first decide whether a claimant would “otherwise be
found to be under a disability . . . .” Id. Then, the ALJ must determine if the treatment prescribed
by a treating source would restore the individual’s ability to work. Id. Finally, the ALJ must
analyze whether the failure to follow that prescribed treatment is justified. Id.
Additionally, SSR 82-59 describes the criteria necessary for a finding of failure to follow
prescribed treatment. Id. An individual’s inability to afford prescribed treatment that he is willing
to accept is a justifiable cause for failure to follow prescribed treatment. Id. at *3-4. However,
“[a]ll possible resources (e.g., clinics, charitable and public assistance agencies, etc.) must be
explored. Contacts with such resources and the claimant’s financial circumstances must be
documented.” Id. at *4. However, “[t]he burden of producing evidence concerning unjustified
non-compliance is on the Secretary.” Dawkins, 848 F.2d at 1214, n. 8. If the ALJ concludes that
an individual does not have a good reason for failing to follow prescribed treatment, the ALJ
must inform the individual of this fact before a determination is made. 1982 WL 31384, at *4.
The individual must also be afforded “an opportunity to undergo the prescribed treatment, or to
show justifiable cause for failing to do so.” Id.
In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either “(1) objective
medical evidence that confirms the severity of the alleged pain arising from that condition or (2)
that the objectively determined medical condition is of such a severity that it can reasonably be
expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); 20 C.F.R.
The claimant was thirty-six years old at the time of the administrative hearing and has a
ninth grade education. (R. 28, 32). His past work experience includes employment as a security
guard, bulk loader, cleanup worker, tree pruner, tire installer, poultry packer, and carpet layer. (R.
42). According to the claimant, he became disabled on March 23, 2008, due to diabetes mellitus,
blurred vision, frequent urination, fatigue, and high blood pressure. (R. 199). Since that date, the
claimant has attempted to work as a security guard, but his earnings for this job were below the
minimum amount required to constitute substantial gainful employment. (R. 12).
On October 15, 2007, Dr. Alex Penot admitted the claimant to the emergency room at
Parkway Medical Center to treat his blurred vision. Dr. Penot diagnosed the claimant with new
onset diabetes due to his high blood sugar level of 600. The radiology report indicated that the
claimant’s lungs were underinflated, and his heart size and pulmonary vasculature were at the
upper range of normal. Dr. Penot prescribed lisinopril for hypertension in relation to diabetes, as
well as metformin and glipizide. (R. 260-264).
Beginning in October, 2007, and continuing through April, 2008, Dr. Adnan Seljuki at
Highlands Internal Medicine, LLC, acted as the claimant’s primary care physician. (R. 265-286).
Dr. Seljuki prescribed several medications for the treatment of the claimant’s diabetes, but
consistently classified the claimant’s diabetes as uncontrolled. (R. 268, 272, 276, 280, 285). Dr.
Seljuki also noted that the claimant had a history of medical non-compliance. (R. 268, 272). Dr.
Seljuki’s records indicated the claimant was a moderate tobacco user, smoking at least one pack
of cigarettes a day. (R. 267, 271, 275, 279, 283).
Over several months in 2008 and 2009, the claimant often visited the emergency room at
Parkway complaining of ailments related to his diabetes. (R. 224, 248, 238, 311, 327, 354, 376,
391, 408, 419, 445, 475, 483). On March 30, 2008, the claimant entered the emergency room at
Parkway Medical Center complaining of hyperglycemia. The claimant informed his emergency
room physician, Dr. Sanjiv Chatterji, that he had been without medication for three weeks
because he could not afford it. His glucose level was 437. The claimant received instructions to
follow up with Dr. Seljuki to obtain affordable medications. (R. 247-250). Again, on April 2,
2008, the claimant entered the Parkway emergency room complaining of high blood sugar. (R.
239). Although the claimant stated he had been taking his medication and watching his diet, his
glucose level was 470, well outside the normal range of 74-106. (R. 244). The claimant was
discharged after receiving eight units of insulin through IV. (R. 242).
On July 1, 2008, the claimant visited the emergency room complaining of chest pain. (R.
311). His glucose level was 86. Upon discharge, he stated that his pain was better after
medication. (R. 312). On August 20, 2008, the claimant entered the emergency room again
complaining of chest pain. (R. 327). His glucose level was 131, and his radiology report
indicated no acute cardiopulmonary abnormality. (R. 333, 334). He received instructions to
follow up with Dr. Seljuki for further evaluation and treatment, and to take his medications as
directed. (R. 325). On September 4, 2008, Dr. Seljuki admitted the claimant to Parkway with
complaints of left-sided weakness, although Dr. Seljuki noted that these symptoms are likely
secondary to psychiatric issues. Dr. Seljuki also noted the claimant’s depressive state was due to
stress caused by socio-economic problems. (R. 341, 342). The claimant’s glucose level was 83,
and he was discharged after two days of observation indicated he had not had a stroke. (R. 342,
344). On September 10, 2008, the claimant visited the emergency room at Parkway complaining
of numbness and tingling in his left arm and face. (R. 355). The claimant’s glucose level was 80.
(R. 359). He was discharged with instructions to follow up with Dr. Seljuki in two days and to
begin taking new medications as prescribed. (R. 351).
On February 23, 2009, the claimant entered the Parkway emergency room complaining of
numbness and tingling in his hands and legs. (R. 377). The claimant’s glucose level was 123. (R.
385). He was discharged and instructed to continue with his current medications. (R. 375). On
April 9, 2009, Dr. Seljuki admitted the claimant to Parkway with pneumonia. His glucose level
was 176, although the discharge summary indicated the hospital used subcutaneous insulin to
control his diabetes. (R. 365, 369). On April 13, 2009, the claimant returned to the Parkway
emergency room complaining of chest pain. (R. 391). The claimant’s glucose level was 185, and
he denied any shortness of breath or numbness or tingling. (R. 392, 399). He received Aspirin
and was told to follow up with Dr. Seljuki the next day. (R. 400, 402).
On May 26, 2009, the claimant entered Parkway’s emergency room complaining of
hypertension, as well as tingling in his left arm and chest. (R. 415). After receiving medication,
the claimant reported his pain was completely relieved and he was discharged. (R. 408). On June
5, 2009, the claimant returned to the emergency room complaining of syncope. (R. 418). The
claimant’s glucose level was 77. (R. 433). He was discharged after an IV saline solution was
administered with instructions to rest and increase his intake of fluids. (R. 421).
On June 7, 2009, Dr. Kamaledin Kamal admitted the claimant to the hospital due to
infectious colitis and acute renal failure secondary to dehydration. He was given intravenous
fluids and antibiotics, and discharged after three days. (R. 437). On September 9, 2009, the
claimant entered the emergency room at Parkway complaining of chest pain and his glucose level
was 156 (R. 483, 490). Upon discharge, he received instructions to follow up with one of the
clinics listed on his discharge instructions. (R. 490, 495). On October 10, 2009, the claimant
returned to Parkway’s emergency room complaining of hyperglycemia and stating that he had
been out of insulin for two days. The hospital records indicated the claimant had stopped
smoking in May, 2009. (R. 475). His glucose level was 667. (R. 481). He received insulin and
was discharged that same day. (R. 479).
On December 17, 2009, Dr. Will Crouch admitted the claimant to Hartselle Medical
Center with complaints of chest and abdominal pain. The claimant stated he owed Dr. Seljuki
money and had not been able to pay him, which prompted Dr. Seljuki to “release” him. (R. 501).
Dr. Crouch further noted that the claimant was unable to buy his medication and had been out of
insulin and other medications for 48 hours. However, Dr. Crouch inconsistently went on to note
that the claimant had apparently been taking one of his medications, metformin, as prescribed.
(R. 501, 504). However, the claimant had stopped taking another medication, Neurontin, due to
cost. His glucose level was 802 at the time of admission, but dropped to 280 when he was
discharged on December 18, 2009. (R. 504, 509).
On February 26, 2010, the claimant’s new primary care physician, Dr. Rupa
Shivalingalah, first examined the claimant, finding that he had been out of diabetic medication
for two weeks. However, the claimant had no other complaints at this visit. (R. 569). Dr.
Shivalingalah further noted that the claimant was not smoking at this time. (R. 570). On August
24, 2010, Dr. Shivalingalah noted that the claimant had recently been hospitalized for
uncontrolled blood sugars, but was unsure if the claimant was compliant with his medications.
(R. 565). At the time of this visit, Dr. Shivalingalah indicated that the claimant had started
smoking half a pack of cigarettes per day and exercised through daily activities. (R. 570). On
November 9, 2010, the claimant returned to Dr. Shivalingalah needing refills on many of his
diabetic medications. (R. 561).
The ALJ Hearing
After the Commissioner denied the claimant’s request for disability insurance and
supplemental security income, the claimant requested and received a hearing before an ALJ on
December 1, 2009. (R. 10). At the hearing, the claimant testified that the conditions preventing
him from working were peripheral neuropathy and chronic fatigue associated with his diabetes.
(R. 43). He testified that on a regular day he can only sit for 30-35 minutes before needing to
stand up. He also testified that he can only stand up for about 30 minutes before needing to sit
down. (R. 47). The claimant further stated that his diabetes caused his vision to become blurry
and caused him to make frequent trips to the bathroom, sometimes twice an hour. (R. 53, 54).
The claimant testified that when his doctor initially diagnosed him with diabetes, his wife
and family helped him to pay for his medication. However, he testified that he later became
unable to afford his medicines and, therefore, stopped using them, relying instead on frequent
emergency room visitations. He testified that Dr. Seljuki stopped seeing him due to his inability
to afford treatment and pay his medical bills. (R. 55, 56).
The claimant’s wife, Rosemary Pelham, testified that the claimant’s medication is
expensive and she could not afford to purchase both insurance and the medicine. She further
stated that the claimant had his medicine on a regular basis for the two months prior to the
hearing, but his blood sugars remained high. She went on to explain that she changed the
claimant’s diet to try to control his blood sugars. She also testified that the claimant could only
work in the garden for two or three hours before needing to stop for the rest of the day; that he
often complained of his hands being tingly; and that he sometimes needed a cane to help him
walk. She went on to describe the claimant’s forgetfulness and inability to perform certain
household chores. (R. 63-67).
A vocational expert, Ms. Bramlett, testified concerning the classification of the claimant’s
past work experience. She classified the claimant’s security guard job as a low semi-skilled, light
job. She further classified the exertional levels of the claimant’s other work history as medium to
very heavy. (R. 41-43). In response to the claimant’s attorney’s questions concerning the
claimant’s alleged inability to stand and walk for extended periods of time, Ms. Bramlett testified
that these limitations could affect the medium, heavy, and very heavy exertional level jobs more
so than they would the light job. She further testified that the claimant’s need for frequent
bathroom visits could be considered excessive, which would preclude the claimant from working
in any job. (R. 71).
The ALJ’s Decision
On January 12, 2010, the ALJ issued a decision finding the claimant was not disabled
under the Social Security Act. (R. 19). First, the ALJ found that the claimant had not engaged in
substantial gainful activity since the alleged onset of his disability. Next, the ALJ found that the
claimant’s insulin dependent diabetes and diabetic neuropathy qualified as severe impairments;
he concluded, however, that these impairments did not singly or in combination manifest the
specific signs and diagnostic findings required by the Listing of Impairments. (R. 12-13).
The ALJ next considered the claimant’s subjective allegations of pain to determine
whether he had the residual functional capacity to perform past relevant work. The ALJ found
that the claimant has severe underlying impairments, but that the “objective evidence does not
confirm either the severity of the claimant’s alleged symptoms arising from his/her medically
documented conditions, or that those conditions could reasonably be expected to give rise to the
symptoms alleged by the claimant.” (R. 13-14).
To support his conclusion, the ALJ referenced the medical history of the claimant. The
ALJ noted that no objective medical evidence in the record supported a “definitive diagnosis of
congestive heart failure . . . .” The ALJ determined that the claimant’s problems stemmed from
his “noncompliance with medication instructions, although dietary and other factors may be
involved in the lack of diabetes control.” Moreover, the ALJ stated that if the claimant follows
instructions, “he does well and his blood sugar remains under good control.” (R. 17).
The ALJ noted that the claimant “continues to engage in a wide range of daily activities.”
(R. 18). These activities included working in a rose garden two hours a day for three consecutive
days, washing dishes, sweeping floors, doing laundry, and shopping in a large store. The ALJ
determined that the claimant’s testimony that he still drove his car was inconsistent with
testimony that the claimant has concentration problems. The ALJ at several points noted that, at
the hearing, the claimant’s hands were stained with ground-in dirt, indicating the claimant’s
ability to perform some degree of light work. Based on these findings, the ALJ concluded that the
claimant should be capable of performing his past work as a security guard, a low semi-skilled
light job, and, therefore, is not disabled under the Social Security Act. (R. 18, 19).
The ALJ also found the claimant’s arguments alleging inability to afford medication
unconvincing. The ALJ noted that the claimant had “received information of available resources
including the Community Free Clinic . . . .” (R. 17). However, the Free Clinic denied medication
assistance because the claimant’s wife earned too much, indicating to the ALJ that the Free
Clinic’s development of the resources available to the claimant showed an ability to afford
medication. (R. 17-18). The ALJ went on to indicate the claimant had not visited the county
health department, another community health resource. Additionally, the ALJ noted the
claimant’s wife’s employer provided medical insurance, but she could not afford it because she
bought his insulin. The ALJ concluded that these facts indicated the claimant’s failure, without
justifiable cause, to follow prescribed treatment, as required by Social Security Ruling 82-59. (R.
The claimant argues that the ALJ improperly found that the claimant failed to follow
prescribed medical treatment. This court agrees and will reverse and remand this case for proper
application of the law and proper consideration of the evidence.
Eleventh Circuit law establishes that failure to follow prescribed medical treatment
without a good reason precludes a finding of disability. Dawkins v. Bowen, 848 F.2d 1211, 1213
(11th Cir. 1988). However, the Circuit has recognized that the inability to afford medication or
treatment excuses non-compliance. Id.; see also Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th
Cir. 2003). If an ALJ denies benefits based on a failure to follow prescribed medical treatment,
the ALJ must find “that had the claimant followed the prescribed treatment, the claimant’s ability
to work would have been restored.” Dawkins, 848 F.2d at 1213. If the ALJ denies benefits solely
on the grounds of non-compliance, the ALJ “is required to determine whether the claimant was
able to afford the prescribed treatment.” Ellison, 355 F.3d at 1275.
Social Security Ruling 82-59 provides further guidance on the issue of failure to follow
prescribed treatment. SSR 82-59, 1982 WL 31384, *1 (1982). When an ALJ finds a claimant to
be under a disability, then he next must determine if a treatment prescribed by a treating source
would restore the claimant’s ability to work. Id. The ALJ then must analyze whether the failure
to follow that prescribed treatment is justified. Id.
In the instant case, the ALJ’s reasoning for his finding that the claimant is not totally
disabled is ambiguous. When discussing the claimant’s ability to afford medication, the ALJ
cited to SSR 82-59. Under SSR 82-59, if the ALJ determines that the claimant would otherwise
be found to be disabled, but has failed without justifiable cause to follow treatment, then the ALJ
can deny the claimant’s disability claims. By citing to this provision, the ALJ indicated he might
otherwise find the claimant to be disabled, but did not make that explicit finding.
Also, the claimant testified that even when he is compliant with his medications, his
glucose level remains high. The ALJ seemingly disregarded this testimony when he summarily
stated in his decision that “[w]hen the claimant follows instructions, he does well and his blood
sugar remains under good control.” (R. 17). On numerous occasions, the claimant entered the
emergency room with complaints associated with his diabetes, only to find his glucose level was
within normal limits. Again, the ALJ disregarded this evidence when he found that the claimant
was able to perform his past relevant work “provided his blood sugar is controlled.” (R. 19). The
ALJ went on to state that “[w]ith medical compliance, the claimant should be able [to] maintain
work.” (R. 19). These statements indicate that the ALJ’s determination relied on the claimant’s
noncompliance with prescribed treatment as grounds for the denial of disability benefits without
considering the full range of medical evidence.
However, at other points in the opinion, the ALJ completely disregards the issue of the
claimant’s non-compliance. The ALJ notes that the claimant engaged in a wide range of daily
activities even when he failed to take insulin. Twice, the ALJ summarily states that the claimant
should be capable of performing his past relevant work. These statements stand in stark contrast
to those previously discussed. Thus, this court cannot determine whether the ALJ considered the
claimant disabled, but noncompliant with medication (and, thus, not disabled); disabled, but
dependent on medication (and, thus, actually disabled); or simply not disabled.
Additionally, the ALJ in this case neglected to follow several procedural requirements
mandated by SSR 82-59. The ALJ indicated in his opinion that if the claimant was compliant
with his medications, he should be able to maintain work. However, during the hearing the
claimant testified that he could not afford his medications. SSR 82-59 requires an ALJ to
appropriately develop the record to resolve whether the claimant is justified in failing to follow
the prescribed treatment.
This court finds that the ALJ failed to develop an adequate record. During the hearing, the
ALJ did ask the claimant if he had anyone to help him pay for his medications. The ALJ also
asked the claimant if he had considered going to the Department of Vocational Rehabilitation to
obtain his medication. However, the ALJ never asked the claimant for documentation of his
financial circumstances, as mandated by SSR 82-59. Moreover, the ALJ mentions the county
health department in his opinion, but failed to ask the claimant if he had attempted to go there to
obtain medication. The ALJ did not document contacts with all possible community resources, as
required by SSR 82-59. Additionally, before the ALJ made his determination concerning the
claimant’s lack of a justifiable reason for failing to follow prescribed treatment, SSR 82-59
required him to inform the claimant of this fact and afford the claimant an opportunity to show
justifiable cause for failing to follow treatment. The record shows no evidence that the ALJ
followed this procedural requirement.
Therefore, in the instant case, the ALJ erred in his application of the legal standard for
failure to follow prescribed treatment by failing to clearly indicate whether the claimant was not
disabled, or was disabled and required medication; and by failing to adhere to the procedural
requirements of SSR 82-59 to fully develop the record and provide sufficient notice and
opportunity to the claimant to prove justifiable cause for failing to follow treatment.
Because the first issue on appeal is meritorious, the court does not need to address any
However, the court notes that, upon remand, the ALJ should consider several other
matters that troubled this court and would also call into question whether substantial evidence
supports the remainder of the ALJ’s decision: (1) whether the ALJ committed error when he
summarily stated that claimant’s diabetes and diabetic neuropathy do not rise to the level of
severity as contemplated by the Listings, specifically Listing 9.08 at 20 C.F.R. Pt. 404, subpt. P,
App. 1, which was in effect at the time of the hearing; and (2) whether the ALJ improperly failed
to address any testimony from the claimant, the claimant’s wife, and the vocational expert
concerning the claimant’s frequent need for bathroom breaks, and the vocational relevance of this
For the reasons as stated, this court concludes that the ALJ failed to apply the appropriate
legal standard in SSR 82-59 to assess whether the claimant justifiably failed to follow prescribed
treatment. Therefore, the court REVERSES the Commissioner’s decision and REMANDS the
case for the ALJ to determine whether the claimant is entitled to Disability Insurance Benefits
and SSI. The court will enter a separate order to that effect simultaneously.
DONE and ORDERED this 21st day of September, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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