Mann v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 8/31/2016. (KEK)
2016 Aug-31 AM 09:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES OBIE MANN,
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Case No.: 6:15-CV-00134-MMH
Pursuant to 42 U.S.C. § 405(g), plaintiff James Obie Mann seeks judicial
review of a final adverse decision of the Commissioner of Social Security. The
Commissioner denied Mr. Mann’s claim for a period of disability and disability
insurance benefits. After careful review, the Court affirms the Commissioner’s
Mr. Mann applied for a period of disability and disability insurance benefits
on November 18, 2011. (Doc. 6-6, pp. 4-10). Mr. Mann alleges that his disability
began on October 1, 2011. (Doc. 6-6, p. 4). The Commissioner initially denied
Mr. Mann’s claim on February 22, 2012.
(Doc. 6-5, pp. 9-11).
requested a hearing before an Administrative Law Judge (ALJ). (Doc. 6-5, pp. 26). The ALJ issued an unfavorable decision on June 10, 2013. (Doc. 6-3, pp. 1719). On November 20, 2014, the Appeals Council declined Mr. Mann’s request for
review (Doc. 6-3, pp. 2-4), making the Commissioner’s decision final and a proper
candidate for this Court’s judicial review. See 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.
“Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In making this evaluation, the Court may not “decide
the facts anew, reweigh the evidence,” or substitute its judgment for that of the
ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir.
2011) (internal quotations and citation omitted). If the ALJ’s factual findings are
supported by substantial evidence, then the Court “must affirm even if the evidence
preponderates against the Commissioner’s findings.” Costigan v. Comm’r, Soc.
Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that he is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. Mann has not engaged in substantial
gainful activity since October 1, 2011, the alleged onset date. (Doc. 6-3, p. 22).
The ALJ determined that Mr. Mann suffers from the following severe
impairments: specific learning disability; borderline intellectual functioning;
degenerative disc disease and bulging disc at L2-3, L4-5, and L5-6; status post
right femur fracture with surgery in 2003; and moderately severe chronic
obstructive pulmonary disease. (Doc. 6-3, p. 22). The ALJ noted that Mr. Mann
was diagnosed with attention deficit disorder when he was 13-years old; however,
the evidence during the relevant period demonstrates that Mr. Mann no longer
experiences significant, persistent symptoms. Therefore, the ALJ concluded that
Mr. Mann’s attention deficit disorder is a non-severe impairment. (Doc. 6-3, p.
22). Based on a review of the medical evidence, the ALJ concluded that Mr. Mann
does not have an impairment or combination of impairments that meets or
medically equals the severity of any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Doc. 6-3, p. 23).
Next, the ALJ evaluated Mr. Mann’s residual functional capacity in light of
his impairments. The ALJ determined that Mr. Mann has the RFC:
to lift/carry twenty pounds occasionally and ten pounds frequently;
stand/walk six hours in an eight-hour day; and sit six hours in an
eight-hour day. He can occasionally push/pull with the right lower
extremity; occasionally stoop, kneel, crouch, crawl; occasionally
climb ramps and stairs and never climb a ladder, rope, and
scaffolding. He can occasionally be exposed to dusts, fumes, odors,
gases, and poor ventilation; understand, remember and carry out
simple instructions; maintain attention and concentration for two hour
time periods in order to complete an eight-hour workday; and adapt to
changes in the work place that are introduced gradually and
(Doc. 6-3, p. 26). Based on this RFC, the ALJ concluded that Mr. Mann is able to
perform his past relevant work as a store laborer. (Doc. 6-3, p. 29). Relying on
testimony from a vocational expert, the ALJ found that additional jobs exist in the
national economy that Mr. Mann can perform, including sorter, machine
tender/plastic, and electronic accessory assembler. (Doc. 6-3, p. 30). Accordingly,
the ALJ determined that Mr. Mann has not been under a disability within the
meaning of the Social Security Act. (Doc. 6-3, p. 30).
Mr. Mann argues that he is entitled to relief from the ALJ’s decision because
the administrative record does not contain substantial evidence to support the
ALJ’s decision that Mr. Mann has the concentration, persistence, and pace required
to work and because the ALJ did not properly apply the Eleventh Circuit’s threepart pain standard. The Court considers these arguments in turn.
Substantial Evidence Supports the ALJ’s Decision that Mr.
Mann Has the Concentration, Persistence, and Pace Required to
In the context of a Social Security disability analysis, “‘[c]oncentration,
persistence, or pace refers to the [claimant’s] ability to sustain focused attention
and concentration sufficiently long to permit the timely and appropriate completion
of tasks commonly found in work settings.’” Kinnard v. Comm’r of Soc. Sec., 426
Fed. Appx. 835, 837 (11th Cir. 2011) (quoting 20 C.F.R. § 404, Subpart P, App.
To support her findings regarding Mr. Mann’s concentration, persistence,
and pace, the ALJ reviewed and largely credited the findings of consultative
examiner Dr. Robert L. Bare, Ph.D. In January 2012, Dr. Bare completed a
psychological evaluation of Mr. Mann. (Doc. 6-8, pp. 8-11). Dr. Bare found that
Mr. Mann’s immediate memory was good and that his thoughts were generally
coherent and organized. (Doc. 6-8, p. 9). Regarding Mr. Mann’s concentration
and attention, Dr. Bare explained that “Mr. Mann was able to subtract serial threes
with no errors. He was able to attend to the course of the evaluation and was able
to respond to the examiner’s questions appropriately.” (Doc. 6-8, p. 9). Dr. Bare
noted that Mr. Mann’s Full Scale IQ score of 79 falls within the borderline range
of general intelligence. (Doc. 6-8, p. 10). Dr. Bare opined that Mr. Mann does not
have mental health or cognitive impairments that would prevent him from
obtaining employment. (Doc. 6-8, p. 11). Dr. Bare opined that Mr. Mann would
not have difficulty managing the stresses of employment or interacting with
coworkers and supervisors. (Doc. 6-8, p. 11).
The ALJ afforded some weight to Dr. Bare’s opinion but gave Mr. Mann the
“benefit of the doubt” based on Mr. Mann’s learning disability and borderline
intellectual functioning; the ALJ found that Mr. Mann “can understand, remember
and carry out simple instructions; maintain attention and concentration for two
hour time periods in order to complete an eight-hour work day; and adapt to
changes in the work place that are introduced gradually and infrequently.” (Doc.
6-3, p. 24).
The ALJ also considered the opinion of state agency reviewing physician
Dr. Robert Estock, M.D. Dr. Estock reviewed the medical evidence and opined
that Mr. Mann had mild restrictions of daily living, mild difficulties in maintaining
social functioning, and mild difficulties in maintaining concentration, persistence
or pace. (Doc. 6-8, p. 16). The ALJ assigned “good weight” to most of Dr.
Estock’s opinions, but the ALJ found that Mr. Mann’s learning disability likely
would preclude him from performing complex or detailed work tasks. (Doc. 6-3,
After reviewing the evidence and giving Mr. Mann the full benefit of the
doubt, the ALJ determined that Mr. Mann has a “moderate limitation in
concentration, persistence and pace.” (Doc. 6-3, p. 25). The ALJ found that “the
combination of the claimant’s education background, mental impairment, and the
effects of his physical condition would reasonably restrict him from performing
complex or detailed tasks.” (Doc. 6-3, p. 25). The ALJ concluded that Mr. Mann
could understand, remember, and carry out simple instructions in a work setting.
(Doc. 6-3, p. 25).
The ALJ’s finding that Mr. Mann has a moderate limitation in concentration,
persistence, and pace is supported by substantial evidence.
Even though the
opinions of two physicians would support less restrictive findings, in her RFC
finding, the ALJ imposed limitations on Mr. Mann’s ability to maintain
concentration, persistence, and pace. The ALJ did so after reviewing the record as
a whole, giving Mr. Mann the benefit of the doubt, and accounting for Mr. Mann’s
Mr. Mann complains that the ALJ’s hypothetical to the vocational expert did
not properly account for limitations in concentration, persistence, and pace. (Doc.
10, p. 11).
“‘[F]or a vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
Winschel, 631 F.3d at 1180 (quoting Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam)). An ALJ is not
required to “include findings in the hypothetical that the ALJ [has] properly
rejected as unsupported.” Crawford, 363 F.3d at 1158.
At the hearing, the ALJ posed a hypothetical to the vocational expert that
included a number of exertional and environmental limitations. The hypothetical
also asked the vocational expert to assume that the claimant “can understand,
remember, and carry out simple instructions” and “can maintain attention,
concentration, for two-hour time periods in order to complete an eight-hour work
day.” (Doc. 6-3, p. 61). The administrative record contains medical records that
support these limitations. Therefore, the ALJ properly accounted for Mr. Mann’s
limitations in concentration, persistence, and pace in the hypotheticals that she
posed to the vocational expert.
See e.g., Washington v. Social Sec. Admin.,
Comm’r, 503 Fed. Appx. 881, 883 (11th Cir. 2013) (“The ALJ also explicitly and
implicitly took into account Washington’s moderate limitations in maintaining
concentration, persistence, or pace by including the restrictions that Washington
was limited to performing only simple, routine repetitive tasks with up to threestep demands, and only occasional changes in the work setting, judgment, or
decision making. Because the evidence showed that Washington could perform
simple, routine tasks, the ALJ’s hypothetical question to the VE which included
this limitation adequately addressed Washington's limitations as to concentration,
persistence, or pace.”); Rosario v. Comm’r of Soc. Sec., 490 Fed. Appx. 192, 195
(11th Cir. 2012) (substantial evidence supported the VE’s testimony because the
ALJ’s hypotheticals accounted for moderate limitations in concentration,
persistence, and pace supported by “independent assessments of three doctors”).
Mr. Mann’s brief suggests that he lost three jobs because of his inability to
maintain concentration, persistence, and pace. (Doc. 10, p. 12). This assertion is
not consistent with the record. For example, Mr. Mann explained during the
administrative hearing that he lost his most recent job as a store laborer at
America’s Thrift Store because he “was having back problems, I was moving too
slow, I wasn’t getting the job done on time.” (Doc. 6-3, p. 41). Mr. Mann told Dr.
Bare that lost his job at America’s Thrift Store because “he was unable to lift the
bags of clothes due to his pain.” (Doc. 6-8, p. 8). Mr. Mann testified that he lost
his job at a chicken plant because he missed too many days of work because his
wife was experiencing complications with a pregnancy, and he had trouble
standing on the concrete floors. (Doc. 6-3, pp. 41-42). Mr. Mann explained that
he lost his job as a floor technician at Wal-Mart because he “got wrote up too
many times and I didn’t get -- I was late getting my part done, it was another
writeup, and they fired me for it.” (Doc. 6-3, p. 42).
Mr. Mann’s testimony does not demonstrate that he lost three jobs because
of limitations on his ability to concentrate or fulfill the other mental demands of
those jobs. Therefore, the Court is not persuaded by Mr. Mann’s argument that
“his failed efforts in his last three jobs clearly demonstrate his inability to maintain
concentration, persistence, and pace required to perform his past work or any other
jobs.” (Doc. 10, p. 12).
“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant’s
subjective testimony, the ALJ “must articulate explicit and adequate reasons for
doing so.” Wilson, 284 F.3d at 1225. “While an adequate credibility finding need
not cite particular phrases or formulations[,] broad findings that a claimant lacked
credibility . . . are not enough. . . .” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
1995) (per curiam).
The ALJ summarized Mr. Mann’s testimony regarding his subjective
complaints of back and leg pain. (Doc. 6-3, p. 26). The ALJ then properly recited
the pain standard and found that Mr. Mann’s “medically determinable impairments
could reasonably be expected to cause some of the alleged symptoms.” (Doc. 6-3,
p. 26). The ALJ also articulated explicit and adequate reasons for rejecting Mr.
Mann’s testimony about the severity of his pain.
Mr. Mann testified at his hearing that he suffered from back pain, which he
attributed to three injured discs in his back and a steel rod in his right leg. (Doc. 611
3, p. 41). Mr. Mann testified that he experiences back pain within two to three
minutes of moving and that he experiences pain when he bends over. (Doc. 6-3, p.
44). Mr. Mann stated that he could lift four to five pounds and could sit for 20 to
30 minutes at a time. (Doc. 6-3, p. 51). Mr. Mann also testified that he had
problems kneeling, crouching, and crawling. (Doc. 6-3, p. 51). On a work history
report dated December 28, 2011, Mr. Mann noted that his lower back pain limited
his activity, and the pain had not improved over the years. (Doc. 6-7, p. 19).
When evaluating a claimant’s subjective symptoms, the ALJ may consider a
range of factors, such as: (1) the claimant’s daily activities; (2) the nature and
intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4)
effects of medications; (5) treatment or measures taken by the claimant for relief of
symptoms; and (6) other factors concerning functional limitations. Moreno v.
Astrue, 366 Fed. Appx. 23, 28 (11th Cir. 2010) (citing 20 C.F.R. § 404.1529(c)(3)).
The ALJ determined that Mr. Mann’s testimony regarding his pain was not
entirely credible because the testimony was inconsistent with the evidence in the
administrative record. First, the ALJ explained that since Mr. Mann injured his
back and leg in a 2003 car accident, Mr. Mann worked several jobs, which
demonstrated that he was capable of performing at least light exertional work
following his injury. (Doc. 6-3, p. 27; see also Doc. 6-7, p. 12; Doc. 6-9, p. 50).
Next, the ALJ reviewed the medical evidence and found that Mr. Mann’s
“lack of medications and lack of medical treatment do not support [his] allegations
of disabling pain.” (Doc. 6-3, p. 27). Mr. Mann testified that his back and leg
pain worsened in October 2011. (Doc. 6-3, p. 52). The ALJ noted, however, that
Mr. Mann was not taking prescription medication and did not seek treatment for
his leg or back pain after his alleged onset date. (Doc. 6-3, p. 27). Mr. Mann
testified that he last received a prescription for pain medication to treat his back
and leg pain from Dr. Scott Boswell. (Doc. 6-3, p. 27, 50). The medical records
demonstrate that Mr. Mann last visited Dr. Boswell in March 2010, more than one
year before the alleged October 1, 2011 onset date. (Doc. 6-8, p. 54). Mr. Mann
injured his knee in July 2011, and he received prescription medication to treat the
pain. (Doc. 6-8, pp. 101, 107). There are no medical records that indicate that Mr.
Mann sought additional treatment for his knee or back pain following that initial
treatment. Physical examinations in 2012 revealed no musculoskeletal complaints
and normal musculoskeletal findings. (Doc. 6-9, pp. 4-7, 28-29). See SSR 96-7P
1996 WL 374186 at *7 (stating that an “individual’s statements may be less
credible if the level or frequency of treatment is inconsistent with the level of
The medical evidence also does not support Mr. Mann’s subjective
complaints of pain associated with his respiratory problems.
acknowledged that Mr. Mann “would be limited in the jobs that he performs due to
his chronic obstructive pulmonary disease” but that “there is nothing in the record
to indicate that the claimant could not perform the less than light residual
functional capacity.” (Doc. 6-3, p. 28). The record supports this conclusion. In
September 2009, Dr. Boswell treated Mr. Mann’s right-sided chest wall pain. Dr.
Boswell found that Mr. Mann’s lungs were clear, and his heart size was normal.
(Doc. 6-8, p. 72). Dr. Boswell identified no active chest disease. (Doc. 6-8, p. 72).
In October 2009, Dr. Boswell diagnosed Mr. Mann with chronic obstructive
pulmonary disease and ordered a pulmonary consult. (Doc. 6-8, p. 73). Dr.
Boswell noted Mr. Mann’s COPD again in December 2009. (Doc. 6-8, p. 62). Mr.
Mann received prescription medication for bronchitis in January 2012. (Doc. 6-9,
p. 12). A January 2012 x-ray revealed no focal filtrate, effusion, or pneumothorax.
(Doc. 6-9, p. 19). In January 2012, Mr. Mann sought treatment for a cough and
fever. The physician who examined Mr. Mann found that Mr. Mann was not
hypoxic and did not suffer from respiratory distress. (Doc. 6-9, p. 31).
Substantial evidence supports the ALJ’s decision to discredit Mr. Mann’s
testimony regarding his respiratory symptoms because Mr. Mann’s subjective
complaints of pain are inconsistent with the objective medical evidence. See Duval
v. Comm’r of Soc. Sec., 628 Fed. Appx. 703, 712 (11th Cir. 2015) (“The ALJ
explained that Mr. Duval’s testimony was not credible to the extent it was
unsupported by the objective medical evidence and then discussed at length why
similar opinions from Mr. Duval’s treating medical providers were unsupported by
the record. From this discussion, we can clearly infer what testimony from Mr.
Duval the ALJ found lacking in credibility and why it was discredited.”);
Hernandez v. Comm’r of Social Sec., 523 Fed. Appx. 655, 657 (11th Cir. 2013)
(“The ALJ found that the objective medical records and Hernandez’s self-reports
to her doctors did not support the alleged severity of her symptoms, and that the
records were inconsistent with the degree of impairment alleged by Hernandez.”).
Mr. Mann argues that he is unable to afford to see a doctor and take
medication. (Doc. 10, p. 14). The Eleventh Circuit has recognized that “if one’s
disability could be cured by certain treatment, yet treatment is not financially
available, then a condition which is disabling in fact continues to be disabling in
law.” Belle v. Barnhart, 129 Fed. Appx. 558, 560 n.1 (11th Cir. 2005) (citing
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)).
Mr. Mann’s argument that the ALJ failed to consider the impact of his
poverty on his ability to obtain treatment fails for two reasons. First, Mr. Mann
has not demonstrated how his poverty prevented him from receiving or obtaining
The record demonstrates that Mr. Mann sought treatment for his
respiratory issues at least three times in 2012. (Doc. 6-9, pp. 4-7; Doc. 6-9, p. 28;
Doc. 6-9, p. 40; Doc. 6-9, p. 44). Yet, Mr. Mann did not seek treatment for his
back or neck after the alleged onset date. Second, even if Mr. Mann were unable
to afford treatment, the ALJ did not solely rely on Mr. Mann’s choice of treatment
to make her determination. See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th
Cir. 2003) (ALJ’s failure to consider claimant’s ability to afford medication was
not in error because the ALJ did not significantly base his decision that the
claimant was not disabled on a finding of noncompliance with prescribed
treatment). The ALJ also considered Mr. Mann’s daily activities. (Doc. 6-3, p.
With respect to those daily activities, during a visit on January 24, 2012 with
consultative examiner Dr. David Aarons, Mr. Mann stated that he was capable of
walking two blocks, sitting for 30 minutes, and standing for 30 minutes. Although
he could not drive very far, Mr. Mann was capable of dressing himself, bathing
himself, and feeding himself. Mr. Mann also completed light housework and
yardwork. (Doc. 6-8, p. 4). Mr. Mann noted that he cared for his three boys,
prepared meals, cut grass with a riding lawn mower, and washed clothes. (Doc. 67, pp. 24-25). This evidence supports that ALJ’s finding that that these activities
are inconsistent with Mr. Mann’s allegations of disabling pain. See Lanier v.
Comm’r of Soc. Sec., 252 Fed. Appx. 311, 314 (11th Cir. 2007) (finding no
reversible error in the ALJ’s assessment of the claimant’s credibility when the ALJ
determined that the claimant’s testimony about the amount of pain was inconsistent
with her description of her activities, which included household chores like laundry
and vacuuming, fishing if someone helped her reel in the fish, and driving short
In making her credibility determination, the ALJ thoroughly considered the
nature and frequency of Mr. Mann’s treatment, his reported daily activities, his
work history, and the medical opinion evidence of record. (Doc. 6-3, pp. 24-29).
The ALJ reached her decision after assessing the credibility of Mr. Mann’s claims
in light of the record as whole. (Doc. 6-3, p. 26). Substantial evidence supports
the ALJ’s credibility findings. See Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th
Cir. 2005) (“In sum, the ALJ considered [the claimant’s] activities of daily living,
the frequency of his symptoms, and the types and dosages of his medications, and
concluded that [the claimant’s] subjective complaints were inconsistent with his
testimony and the medical record. The ALJ thus adequately explained his reasons
and it was reversible error for the district court to hold otherwise.”); Carman v.
Astrue, 352 Fed. Appx. 406, 408 (11th Cir. 2009) (“The ALJ articulated various
inconsistencies in [the claimant’s] evidence that a reasonable person could
conclude supported the ALJ’s finding that [the claimant’s] subjective complaints
of pain were not entirely credible.”).
For the reasons discussed above, the Court finds that substantial evidence
supports ALJ’s decision, and the ALJ applied proper legal standards. The Court
will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner. The Court will
enter a separate final judgment consistent with this memorandum opinion.
DONE and ORDERED this August 31, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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