Rigg v. Colvin
MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 7/25/17. The court hereby AFFIRMS the Commissioner's final decision, and this civil action is DISMISSED, with each party to bear his and her own fees and costs. A separate judgment will enter in favor of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security. (bwilk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01096-NYW
DONALD JOSEPH RIGG,
NANCY A. BERRYHILL, 1
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This civil action arises under Titles II and XVI of the Social Security Act (“Act”), 42
U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social Security’s
(“Commissioner” or “Defendant”) final decision denying Plaintiff Donald Rigg’s (“Plaintiff” or
“Mr. Rigg”) application for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”). Pursuant to the consent of the Parties and Order of Reference dated October 12,
2016 [#16], 2 this civil action was referred to this Magistrate Judge for a decision on the merits.
See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; D.C.COLO.LCivR 72.2. After carefully considering
This action was originally filed against Carolyn Colvin, as Commissioner of the Social Security
Commissioner Berryhill succeeded Commissioner Colvin as Acting
Commissioner of the Social Security Administration on January 23, 2017. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, this court automatically substitutes Acting
Commissioner Berryhill as Defendant in this matter.
For consistency and ease of reference, this Order utilizes the docket number assigned by the
Electronic Court Filing (“ECF”) system for its citations to the court file, using the convention
[#___]. For the Administrative Record, the court refers to ECF docket number, but the page
number associated with the Record, which is found in the bottom right-hand corner of the page.
For documents outside of the Administrative Record, the court refers to the ECF docket number
and the page number assigned in the top header by the ECF system.
Plaintiff’s Opening Brief [#12] and Defendant’s Response Brief [#13], the entire case file, the
Administrative Record, and the applicable case law, this court respectfully AFFIRMS the
This case arises from Plaintiff’s applications for DIB and SSI protectively filed on or
about April 6 and 26, 2012, respectively. See [#8-3 at 104-05, 131; #8-5 at 278, 285]. Mr. Rigg
completed the twelfth grade in 1978; he did not attend college. See [#8-2 at 54-55, 84; #8-3 at
115, 126; #8-6 at 323; #8-8 at 556]. Plaintiff alleges that he became disabled on April 1, 2012,
due to depression and “mental issues.” See [#8-6 at 317, 322]. Mr. Rigg was fifty-two at the
date of onset of his claimed disability.
The Colorado Department of Human Services denied Plaintiff’s applications
administratively on September 25, 2012. See [#8-3 at 104-105, 106-27]. Mr. Rigg timely filed a
request for a hearing before an Administrative Law Judge (“ALJ”) on November 19, 2012. See
[#8-4 at 168-69]. ALJ William Musseman (the “ALJ”) held a hearing on November 20, 2013
(the “2013 hearing”). [#8-2 at 51; #8-3 at 131].
The 2013 Hearing
At the 2013 hearing, Mr. Rigg proceeded through counsel, and the ALJ received
testimony from Plaintiff and Vocation Expert Dr. Dennis Duffin (the “VE”). See [#8-3 at 131].
Plaintiff testified that he currently resides with his brother and sister in an apartment. [#8-2 at
56]. Plaintiff testified that, although his current living situation involves a lot of yelling and
anger, he has to be there for his brother who suffered a severe head injury in an accident. [Id. at
When asked about any work he has done since his alleged onset on April 1, 2012,
Plaintiff responded that he helped his neighbor “cut and rake her lawn,” and that does work both
inside the house and outside (e.g., “doing gutters”). [Id. at 57]. However, his brother or his
sister managed the bills. [Id. at 69-70]. Plaintiff continued that he previously worked as a
laborer—pouring concrete, landscaping, building bridges, and using large machinery. [Id.]. As
a laborer, Plaintiff had to carry and lift items that were 50 pounds or heavier. See [id.at 57-58].
Relatedly, when asked whether he could return to full-time employment mowing lawns, Plaintiff
testified that he would like to return to mowing lawns, but that he physically cannot because of
his “body letting go.” [Id. at 64-65]. However, Plaintiff testified that he does not receive
treatment for his physical ailments. [Id. at 65].
As to his mental ailments, Plaintiff first testified that he suffers from hallucinations that
occur in his sleep, and that his new medication has helped decrease the frequency of daytime
hallucinations. [Id. at 58-59]. However, because his medication makes him itchy, drowsy,
dizzy, and causes blurry vision, Plaintiff testified that he naps for about 4 hours during the day.
[Id. at 59]. Plaintiff also testified that, because of the daytime naps and nighttime hallucinations,
he does not sleep much at night, and that this makes him angry. [Id. at 60-61, 66]. Plaintiff also
worries incessantly about things on a daily basis, he has issues with concentration, and he suffers
from migraine-like headaches that last approximately 3-4 days and occur frequently. [Id. at 7071]. For his mental health issues (which may include schizophrenia, bipolar disorder, depression,
and anxiety, see [id. at 72]), Plaintiff testified that he received treatment once every two weeks at
Aspen Pointe. [Id. at 61-62, 72-73].
Plaintiff then testified about his social life. Plaintiff stated that he spends time with
friends, and that “it seems like none of his [hallucinations] really bothers [him].” [Id. at 61].
Rather, his mental issues are worse when he is alone, trying to sleep, or when no one else is
As to his daily activities, Plaintiff testified that he usually does the cooking and grocery
shopping, he goes for walks, takes drives to his friends’ houses, fishes and swims, does the
laundry every few days, and has no issues with personal hygiene. [Id. at 66-67]. However,
Plaintiff also testified that he responds poorly to mistreatment by supervisors. [Id. at 68-69].
The VE also testified at the 2013 hearing. Pursuant to the VE’s written evaluation,
Plaintiff’s past work included a construction laborer, a specific vocational preparation (“SVP”) 3
level 2 very heavy exertion job; a landscape laborer, SVP level 2 heavy exertion job; and
machinery rebuilder, a SVP level 3 medium exertion job. See [#8-6 at 386].
The ALJ then posited two hypotheticals to the VE. First, assuming a person of the same
age, education, and vocational history as Mr. Rigg, could such an individual perform any of Mr.
Rigg’s prior work with the following non-exertional limitations: (1) no complex tasks, defined
as SVP level 2 or less; (2) no dealing with the general public; and (3) only occasional dealing
with co-workers. [#8-2 at 75]. The VE responded that such an individual could perform only
half of the jobs in the three occupational groups identified as Mr. Rigg’s previous work. [Id.].
These jobs included a farm worker II and a hand packager—both SVP level 2 medium exertion
jobs. [Id. at 75-76]. Second, assuming the same individual as hypothetical one, but with
additional marked limitations in the ability to maintain attention and concentration, perform
activities within a schedule, and maintain regular attendance and punctuality within customary
SVP refers to the “time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker
situation.’” Vigil v. Colvin, 805 F.3d 1199, 1201 n.2 (10th Cir. 2015) (citing Dictionary of
Occupational Titles, App. C, Sec. II (4th ed., revised 1991); 1991 WL 688702 (G.P.O.). The
higher the SVP level, the longer time is needed to acquire the skills necessary to perform the job.
Jeffrey S. Wolfe and Lisa B. Proszek, SOCIAL SECURITY DISABILITY AND THE LEGAL PROFESSION
163 (Fig. 10-8) (2003). SVP level 3-4 is associated with semi-skilled work.
tolerances, could such an individual perform any full-time work? [Id. at 76]. The VE testified
that these additional limitations would eliminate all competitive work. [Id.].
Plaintiff’s counsel posed an additional hypothetical to the VE that included a similar
individual to the ALJ’s first hypothetical, except this individual was limited to no interaction or
contact with a supervisor, co-workers, or the public. [Id. at 77]. The VE testified that such an
individual could not perform any competitive work. [Id.]. Plaintiff’s counsel then asked if such
an individual were limited to brief and superficial interaction with supervisors and co-workers,
could that individual perform the jobs the VE identified, to which the VE responded yes. [Id.].
On November 29, 2013, the ALJ issued a decision finding Mr. Rigg not disabled under
the Act. [#8-3 at 131]. Plaintiff requested Appeals Council review of the ALJ’s decision, which
the Appeals Council granted. [Id. at 148]. The Appeals Council then remanded Mr. Rigg’s case
back to the ALJ for further proceedings on a number of issues. [Id. at 148-150 (detailing the
issues for the ALJ’s consideration on remand)]. Accordingly, the ALJ held a second hearing on
September 23, 2015 (the “2015 hearing”). See [#8-2 at 32, 80].
The 2015 Hearing
At the 2015 hearing, Mr. Rigg again proceeded through counsel, and the ALJ received
testimony from Plaintiff and Vocation Expert Douglas Prutting (“VE Prutting”).
testified that he stopped working in April 2012, because “it was like [he] lost [his] mind and
couldn’t think.” [Id. at 85]. He continued that he “had an attitude against everybody,” that he
could not “trust nobody,” and that he was hearing voices “all day and all night” despite his
medications. [Id. at 85-86]. As to his auditory hallucinations, Plaintiff testified that they have
become so bad he “can’t deal with reality anymore,” and that they keep him up at night. [Id. at
86, 90-91]. Plaintiff also reported that his auditory hallucinations make it impossible to work,
because he cannot take direction from a supervisor without “copping an attitude.” [Id. at 92-93].
Plaintiff did testify that he has some friends that he visits approximately once a month, but that
his auditory hallucinations make it difficult to focus on conversations with his friends, and he has
cancelled camping trips because of his mental ailments. [Id. at 86-87]. Mr. Rigg stated that he
tries to spend as much time alone as possible, but is generally “easy going” and polite when
talking to neighbors. [Id. at 89, 94].
Plaintiff continued that his medication side effects diminish his appetite, cause
constipation, and cause headaches that last 3-4 days. [Id. at 88]. Plaintiff testified that he takes
two types of medications for his headaches, but his headaches can still last days. [Id.]. Plaintiff
also stated that he reported to a Michigan emergency room in 2012, because the medication
Haldol made him feel like a “zombie.” [Id. at 91-92].
As to his daily activities, Plaintiff testified that he goes grocery shopping, but despite
being polite and friendly to people, he gets frustrated and thinks bad thoughts about others in the
grocery store. [Id. at 88-89]. However, Plaintiff stated that his auditory hallucinations have not
caused him to leave the grocery store because they were bothering him, although they have
prohibited from actually going to the grocery store. [Id. at 89].
When asked what has prohibited him from returning to full-time work since April 1,
2012, Plaintiff testified, “My body just won’t put out no more.” [Id. at 95]. In addition, he
stated that his diabetes causes his hands and feet to go numb, and that he “can’t do anything
about it until [he] see[s] [his] primary doctor.” [Id. at 95-96].
VE Prutting also testified at the 2015 hearing.
In recounting Mr. Rigg’s previous
employment, VE Prutting testified that Plaintiff had jobs as a ditch digger in construction and
laborer in construction—both SVP level 2 very heavy exertion jobs; a day laborer, a SVP level 3
heavy exertion job; a landscape laborer, SVP level 2 heavy exertion job; and a pump servicer, a
SVP level 7 medium exertion job. [Id. at 99].
The ALJ then proposed two hypotheticals to VE Prutting.
First, the ALJ inquired
whether an individual with the same age, education, and work history as Mr. Rigg with the nonexertional limitations of: (1) no dealing with the general public; (2) occasional dealing with coworkers; (3) minimal supervision and no complex tasks, defined as SVP level 2 or less unskilled
work, would be able to perform any of Plaintiff’s past work. [Id.at 99]. VE Prutting responded
that such an individual could perform Mr. Rigg’s past work as a ditch digger and landscape
laborer. [Id.]. In addition, VE Prutting testified that such an individual could perform the jobs of
hand packager and floor waxer—both SVP level 2 medium exertion jobs. [Id.]. Second, the
ALJ asked whether an individual similar to that in the first hypothetical, but with marked
limitations in his ability to: (1) maintain concentration and attention for extended periods of
time; (2) perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; and (3) sustain ordinary routine without supervision, would be able
to perform any competitive work. [Id. at 100]. VE Prutting responded, “No.” [Id.].
Mr. Rigg’s counsel also posed hypotheticals to VE Prutting. First, Plaintiff’s counsel
asked whether an employer would tolerate an individual described in hypothetical one who
missed at least two days a month—either because he left early or did not show up—because of
his mental ailments. [Id. at 101]. VE Prutting responded, “No.” [Id.]. Plaintiff’s counsel also
asked whether an employer would tolerate an individual similar to the ALJ’s first hypothetical
that could not act appropriately around co-workers and supervisors, to which VE Prutting again
responded, “No.” [Id.].
On November 5, 2015, the ALJ again issued an opinion that Mr. Rigg was not disabled
under the Act. [#8-2 at 32]. Plaintiff again sought Appeals Council review of the ALJ’s
decisions; however, the Appeals Council denied Plaintiff’s request, rendering the ALJ’s decision
the final decision of the Commissioner. [Id. at 1-4]. Plaintiff sought judicial review of the
Commissioner’s final decision in the United States District Court for the District of Colorado on
May 12, 2016, invoking this court’s jurisdiction to review the Commissioner’s final decision
under 42 U.S.C. § 1383(c)(3).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); accord Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ
failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial
evidence.” (internal citation omitted)). The court may not reverse an ALJ simply because she
may have reached a different result based on the record; the question instead is whether there is
substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan,
929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). However,
“[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes
mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation
omitted). The court may not “reweigh the evidence or retry the case,” but must “meticulously
examine the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070
(internal citation omitted).
The ALJ’s Decision
An individual is eligible for DIB benefits under the Act if he is insured, has not attained
retirement age, has filed an application for DIB, and is under a disability as defined in the Act.
42 U.S.C. § 423(a)(1). Supplemental Security Income is available to an individual who is
financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C.
§ 1382. An individual is determined to be under a disability only if his “physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 423(d)(2)(A).
The disabling impairment must last, or be expected to last, for at least 12 consecutive months.
See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove he
was disabled prior to his date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining whether
a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). “If a
determination can be made at any of the steps that a claimant is or is not disabled, evaluation
under a subsequent step is not necessary.” Williams, 844 F.2d at 750. Step one determines
whether the claimant is engaged in substantial gainful activity; if so, disability benefits are
denied. Id. Step two considers “whether the claimant has a medically severe impairment or
combination of impairments,” as governed by the Secretary’s severity regulations. Id.; see also
20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have
more than a minimal effect on his ability to do basic work activities, he is not eligible for
If, however, the claimant presents medical evidence and makes the de
minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844
F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of
listed impairments that the Secretary acknowledges are so severe as to preclude substantial
gainful activity,” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation
process, the ALJ must determine a claimant’s Residual Functional Capacity (“RFC”), which
defines what the claimant is still “functionally capable of doing on a regular and continuing
basis, despite his impairments: the claimant’s maximum sustained work capability.” Williams,
844 F.2d at 751. The ALJ compares the RFC to the claimant’s past relevant work to determine
whether the claimant can resume such work. See Barnes v. Colvin, 614 F. App’x 940, 943 (10th
Cir. 2015) (citation omitted). “The claimant bears the burden of proof through step four of the
analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
At step five, the burden shifts to the Commissioner to show that a claimant can perform
work that exists in the national economy, taking into account the claimant’s RFC, age, education,
and work experience. 4 Neilson, 992 F.2d at 1120. The Commissioner can meet her burden by
“A claimant’s RFC to do work is what the claimant is still functionally capable of doing on a
regular and continuing basis, despite his impairments: the claimant’s maximum sustained work
capability. The decision maker first determines the type of work, based on physical exertion
(strength) requirements, that the claimant has the RFC to perform. In this context, work existing
in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine
the claimant’s ‘RFC category,’ the decision maker assesses a claimant’s physical abilities and,
consequently, takes into account the claimant’s exertional limitations (i.e., limitations in meeting
the strength requirements of work). Williams, 844 F.2d at 751-52. However, if a claimant
suffers from both exertional and nonexertional limitations, the decision maker must also consider
“all relevant facts to determine whether the claimant’s work capability is further diminished in
terms of jobs contraindicated by nonexertional limitations.” Id.
the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098-99, 1101 (9th Cir.
The ALJ found that Mr. Rigg was insured for DIB through March 31, 2015. [#8-2 at 34].
Next, following the five-step evaluation process, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since his alleged onset date of April 1, 2012. [Id.]. At
step two, the ALJ determined Mr. Rigg had the following severe impairments:
disorder, schizophrenia, and substance abuse. [Id. at 35]. The ALJ did not identify any physical
impairment(s). [Id.]. At step three, the ALJ determined that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
[Id. at 36-37].
The ALJ determined that Plaintiff had the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels, but limited
that work to SVP level 2 or less subject to non-exertional limitations [id. at 37-43], and, at step
four, concluded that Mr. Rigg was able to perform his past work as a ditch digger, construction
laborer, and landscape laborer, [id. at 43]. At step five, considering Plaintiff’s age, education,
work experience, and RFC reflecting his non-exertional limitations, the ALJ also concluded that
Plaintiff could perform the jobs of hand packager and floor waxer—each of which existed in
significant numbers in the national economy. [Id. at 44].
On appeal, Mr. Rigg raises three challenges to the Commissioner’s final decision: (1) the
ALJ improperly weighed the medical opinion evidence; (2) the ALJ improperly assessed the
Plaintiff’s credibility; and (3) the Appeals Council failed to adequately consider new medical
evidence. [#12]. The court considers these challenges below.
The RFC Assessment
In formulating a RFC assessment, the ALJ must consider the combined effect of all of the
claimant’s medically determinable impairments, including the severe and non-severe. See Wells
v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); 20 C.F.R. § 404.1529(a); SSR 96-9p. A
claimant’s RFC is the most work the claimant can perform, not the least. 20 C.F.R. § 404.1545;
SSR 83-10. The ALJ’s RFC assessment must be consistent with the record as a whole and
supported by substantial evidence. See generally Howard v. Barnhart, 379 F.3d 945, 947 (10th
Cir. 2004); SSR 96-08p. If it is, the court will not reverse the ALJ’s decision even if it could
have reached a different conclusion. Ellison, 929 F.2d at 536. Again, the reviewing court may
not “reweigh or retry the case.” Flaherty, 515 F.3d at 1070.
Here, the ALJ concluded that Plaintiff had the RFC to “perform a full range of work at all
exertional levels but with the following non-exertional limitations: no complex tasks (specific
vocational preparation (SVP) 2 or less), no dealing with the general public, and only occasional
dealing with coworkers.” [#8-2 at 37]. Plaintiff challenges the ALJ’s decision on two grounds.
Weighing the Opinion Medical Evidence
In assessing a claimant’s RFC, the ALJ must address medical source opinions.
Generally, the opinion of a treating source is entitled to controlling weight so long as it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record.” 20 C.F.R. § 416.927(c)(2).
See also 20 C.F.R. § 404.1527(b), (c); Pacheco v. Colvin, 83 F. Supp. 3d 1157, 1161 (D. Colo.
2015). The ALJ is required to apply the following factors when she declines to give the treating
source’s opinion controlling weight:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Massanari, 255 F.3d 1211,
1213 (10th Cir. 2001) (citing 20 C.F.R.
§ 416.927(c)(2)(i)-(ii), (c)(3)-(c)(6)). See also 20 C.F.R. § 404.1527(c). In all cases, an ALJ
must “give good reasons in [the] notice of determination or decision” for the weight assigned to a
treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2). See
also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (citing SSR 96–2p, 1996 WL
374188, at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)). “[I]f the ALJ rejects the
opinion completely, he must then give ‘specific, legitimate reasons’ for doing so.” Watkins, 350
F.3d at 1300 (internal quotations and citations omitted).
On April 17, 2013, Dr. Sorensen co-signed a Psychiatric/Psychological Impairment
Questionnaire on behalf of Mr. Rigg. [#8-7 at 512]. As relevant here, Dr. Sorensen indicated
that his clinical findings included, inter alia, poor memory; oddities of thought, perception,
speech or behavior; mood disturbance; time or place disorientation; social withdrawal or
isolation; hostility and irritability; and difficulty thinking or concentrating. [Id. at 513]. Based
on these findings, Dr. Sorensen opined that Plaintiff suffered from the following marked
limitations in his ability to: (1) remember locations and work-like procedures; (2) understand
and remember detailed instructions; (3) carry out detailed instructions; (4) maintain attention and
concentration for extended periods; (5) perform activities within a schedule, maintain regular
attendance, and be punctual with customary tolerance; (6) sustain ordinary routine without
supervision; (7) complete a normal workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; (8) get along with co-workers or peers without distracting them or exhibiting behavioral
extremes; and (9) respond appropriately to changes in the work setting. [Id. at 515-16]. Dr.
Sorensen also opined that Mr. Rigg was incapable of even “low stress,” including an extremely
low tolerance for frustration and stress, and assigned Plaintiff a Global Assessment of
Functioning (“GAF”) score of 40. 5 [Id. at 512, 517].
The ALJ, however, afforded Dr. Sorensen’s opinions that Mr. Rigg had (1) a marked
limitation in each broad area of understanding and memory and (2) he was incapable of even
“low stress,” little weight. [#8-2 at 40]. This was because the “Aspen Pointe treatment and
office notes d[id] not support these findings.” [Id.]. Rather, those notes repeatedly reported that
Plaintiff had good recent and remote memory; fair to good attention and concentration; an
appropriate mood and affect; and calm and appropriate behavior. See [id.]. In addition, the ALJ
concluded that the medical evidence indicated that Plaintiff’s symptoms had improved with
treatment. [Id. at 41].
Mr. Rigg challenges the ALJ’s decision to give the opinion of Dr. Sorensen little weight.
[#12 at 18]. Specifically, Plaintiff argues that the ALJ erred “by picking out some normal
findings from the treatment records to conclude that Dr. Sorensen’s opinions are inconsistent
with the record as a whole[,]” as Dr. Sorensen’s opinions were consistent with mental status
[Id. at 18-20].
Further, substantial evidence does not support the ALJ’s
According to the Diagnostic and Statistical Manual of Mental Disorders 4th Edition (“DSMIV”), a GAF score of 40 indicates some impairment in reality testing or communication, or major
impairment in several areas such as work or school, family relations, judgment, thinking, or
mood (e.g., is unable to work). See Global Assessment of Functioning (GAF) Scale, available at
https://msu.edu/course/sw/840/stocks/pack/axisv.pdf (last visited July 17, 2017). However, the
Diagnostic and Statistical Manual of Mental Disorders 5th Edition (“DSM-V”) eliminated the
use of a GAF score due to the questionable probative value of such scores. See DSM-V at 16.
conclusion that Plaintiff’s symptoms improved to a degree such that Dr. Sorensen’s opinion is
unsupported by the record as a whole. [Id. at 20]. Additionally, even if Dr. Sorensen’s opinion
was not entitled to controlling weight, his opinion was entitled to deference and the ALJ failed to
weigh his opinion “using all the factors provided in 20 CFR 404.1527 and 416.927.” [Id. at 2122].
Defendant responds that Plaintiff informed his treatment providers that his condition
remained unchanged over the previous 10 years, and that the ALJ was justified in relying on Dr.
Wanstrath’s (the state consultative examiner) opinion that Plaintiff had less severe nonexertional limitations than those assessed by Dr. Sorensen. [#15 at 7-8]. Further, Dr. Sorensen’s
opinion was inconsistent with the record as whole and, thus, the ALJ appropriately weighed the
conflicting medical evidence and accorded Dr. Sorensen’s opinion little weight. [Id. at 6, 9].
Here, the court respectfully concludes that the ALJ did not err when affording Dr.
Sorensen’s opinion little weight. To start, the ALJ specifically considered the objective medical
evidence that was inconsistent with Dr. Sorensen’s marked limitations in each broad area of
understanding and memory; concentration and persistence; social interactions; and adaptations.
[#8-2 at 40]. Treatment notes from Aspen Pointe regularly reported that Plaintiff had good
recent and remote memory, fair to good attention and concentration, appropriate mood and
affect, and appropriate and calm behavior. See, e.g., [#8-8 at 526, 531-32, 537, 538-39, 542-43,
549-50, 603-04, 608-09, 613-14, 618, 639-40, 644-45, 650-51, 656; #8-9 at 668-69, 714-15].
Other treatment records from different providers indicated similar findings. See [#8-7 at 439,
447, 450, 454, 478, 484, 486, 489, 493, 495; #8-8 at 566, 568, 571, 574, 577, 581, 584, 587].
While it is true that medical evidence exists that may corroborate Dr. Sorensen’s opinion, see
generally [#8-7 at 439, 469-70, 486; #8-8 at 526, 538; #8-9 at 669], at best, Plaintiff’s argument
highlights conflicts within the medical evidence. Contrary to Plaintiff’s contentions, the ALJ did
not err in resolving such conflicts. See Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016).
And, in doing so, the ALJ limited Plaintiff to SVP level 2 or less unskilled work to account for
difficulties with memory and concentration, with no interactions with the general public and only
occasional interactions with co-workers to account for Mr. Rigg’s moderate limitation in social
function, as reflected in consistent observations by health care providers of his tendency to get
angry and irritable. [#8-2 at 37, 39].
Accordingly, the court finds no error in the ALJ’s determination that Dr. Sorensen’s
opinion on Plaintiff’s marked limitations (in the broad areas of understanding, memory, and
social functioning) was inconsistent with the other substantial evidence in the record, see
Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007), as the ALJ gave “good reasons in the
notice of determination or opinion for the weight” assigned to that opinion, Doyal v. Barnhart,
331 F.3d 758, 762 (10th Cir. 2003). Further, the ALJ properly identified evidence that both
supported his conclusion as well as probative evidence that he rejected—nothing requires the
ALJ to discuss “every piece of evidence,” and this court will not now reweigh the evidence the
ALJ considered. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
Nor does this court conclude that the ALJ committed reversible error when rejecting Dr.
Sorensen’s opinion on the basis that Plaintiff’s symptoms showed improvement. Though a
closer call, the record demonstrates varying reports as to whether Plaintiff’s symptoms were
improving with treatment. Compare [#8-7 at 429, 453 (documenting improvement); #8-8 at 533,
537, 596, 627, 635, 650 (same)] with [#8-7 at 419, 427, 482-83, 486, 491 (documenting
Plaintiff’s subjective reports of no symptom improvement); #8-8 at 538, 596, 603, 614, 619, 640,
650 (same)]. Again, it is the ALJ’s responsibility to resolve conflicts in the medical record, and
this court will not reverse such a determination if supported by substantial evidence, even if this
court could have reached a different conclusion. Allman, 813 F.3d at 1333. In any case, as
discussed above, the ALJ appears to have accounted for Mr. Rigg’s limitations, without any
expectation of improvement, through his determination of the RFC. [#8-2 at 39].
Similarly, the court respectfully concludes that the ALJ did not err by failing to explicitly
address each enumerated factor under 20 C.F.R. § 404.1527(d). As discussed, “the ALJ’s
citation to contrary, well-supported medical evidence, satisfies the requirement that the ALJ’s
decision be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight.”
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (internal quotations and citation
omitted). Further, there is no requirement that an ALJ explicitly consider each enumerated
factor, as not every factor will apply in every case. Id. Accordingly, the court respectfully
concludes that the ALJ did not err in affording Dr. Sorensen’s opinion little weight.
The court reaches a similar conclusion as to Medical Assistant (“MA”) Miller. MA
Miller also completed a Psychiatric/Psychological Impairment Questionnaire on Mr. Rigg’s
behalf. See [#8-8 at 627]. Like Dr. Sorensen, MA Miller’s clinical findings also included poor
memory; oddities of thought, perception, speech or behavior; mood disturbance; social
withdrawal or isolation; delusions or hallucinations; and difficultly thinking or concentrating,
among other things. See [id. at 628]. Accordingly, MA Miller opined that Plaintiff had the
following marked limitations in his ability to:
(1) understand and remember detailed
instructions; (2) carry out detailed instructions; and (3) maintain attention and concentration for
extended periods. 6 Plaintiff argues that the ALJ improperly discounted MA Miller’s opinion
because, even though MA Miller is not an acceptable medical source, the ALJ was nevertheless
required to evaluate MA Miller’s opinion in accordance with the factors of 20 C.F.R.
§ 404.1527(d). [#12 at 22]. Specifically, the ALJ failed to account for the duration of MA
Miller and Mr. Rigg’s treatment relationship, or that MA Miller’s opinion finds support in the
same treatment notes the ALJ cited to refute that opinion.
Respectfully, the court
The ALJ assigned very little weight to MA Miller’s opinion that Mr. Rigg had marked
limitations in the broad areas of understanding and memory and sustained concentration and
persistence. [#8-2 at 41]. First, the ALJ concluded that MA Miller, as a pre-doctoral intern and
therapist, was not an acceptable medical source under Social Security Regulation (“SSR”) 0603p. [Id.]. Despite the fact that MA Miller is not an “acceptable medical source” under the
regulations, opinions from these “medical sources are important and should be evaluated on key
issues such as impairment severity and functional effects.” See Bowman v. Astrue, 511 F. 3d
1270, 1274-75 (10th Cir. 2008). To that end, the ALJ explained that Aspen Pointe treatment
notes did not support the marked limitations MA Miller identified. [Id. (citing treatment notes
that reported Plaintiff had good memory, and fair to good attention and concentration)]. In
addition, the ALJ explained that consultative examiner Dr. Brett Valette’s opinion contradicted
MA Miller’s opinion. Namely, Dr. Valette opined that Mr. Rigg’s cognitive functioning and
overall understanding and memory remained intact, and that his attention and concentration was
only moderately impaired—findings consistent with the medical record as a whole.
MA Miller also indicated that there was insufficient evidence to form an opinion in a number of
areas regarding Plaintiff’s sustained concentration and persistence, social interactions, and
adaptation. See [#8-8 at 630-32].
Similarly, the ALJ accepted that Mr. Rigg has non-exertional mental limitations, albeit less
broadly than those opined by MA Miller. The ALJ gave great weight to opinions that indicated
that Mr. Rigg cannot follow complex instructions but rather must be limited to simple
instructions and simple work-related decisions, and must have restrictions on public and peer
contact. [#8-2 at 42-43].
This court respectfully concludes that the ALJ articulated “specific, legitimate reasons”
for rejecting MA Miller’s opinion. See Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.
2004) (internal quotations and citation omitted). “Given the nature and limits of our review, and
given as well the detailed reasons offered by the ALJ for rejecting [MA Miller’s] opinion, we do
not second-guess his decision.” White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001); see also
Ward v. Berryhill, No. 16-CV-00820-RBJ, 2017 WL 1324895, at *3 (D. Colo. Apr. 7, 2017).
“‘Credibility determinations are peculiarly the province of the finder of fact’ and the
Tenth Circuit will uphold such determinations, so long as they are supported by substantial
evidence.” Ruh v. Colvin, No. 13-CV-01255-PAB, 2015 WL 1517392, at *2 (D. Colo. Mar. 30,
2015) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)). “Credibility determinations
should not be conclusory, but instead ‘closely and affirmatively linked’ to evidence in the
record.” Oliva v. Colvin, No. 13-CV-02495-PAB, 2015 WL 5719645, at *7 (D. Colo. Sept. 30,
2015) (quoting Kepler, 68 F.3d at 391)). In addition to considering the objective medical
evidence, the ALJ must also consider several factors including, inter alia, the claimant’s daily
activities. See SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); accord Wilson v. Astrue, 602
F.3d 1136, 1146 (10th Cir. 2010). However, the ability to perform daily activities on a sporadic
basis does not equate to the claimant being able to engage in substantial gainful activity; nor may
an ALJ rely on minimal daily activities to find that the claimant does not suffer from disabling
pain. Proctor v. Astrue, 665 F. Supp. 2d 1243, 1256 (D. Colo. 2009).
Mr. Rigg contends that the ALJ improperly evaluated his credibility, because his mental
status exams are “far from ‘benign,’” there is no evidence that he has improved with treatment,
his ability to work in the past despite his symptoms does not mean he could have worked since
April 1, 2012 when his condition deteriorated, and his ability to perform minimal daily activities
does not equate to the ability to withstand the mental demands of gainful employment. [#12 at
24]. However, upon review of the ALJ’s decision, this court respectfully concludes that the ALJ
did not err in evaluating Plaintiff’s credibility.
In concluding that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of his symptoms were not entirely credible, the ALJ first concluded that the
record did not support the degree of limitations Plaintiff alleged regarding his mental ailments,
not the existence of the ailments. [#8-2 at 38]. Specifically, the ALJ found that “[c]ontrary to
[Mr. Rigg’s] testimony that he is unable to work because of depression, multiple psychiatric
evaluations showed rather benign findings, including an appropriate mood and affect.” [Id.
(citing treatment notes)]. The ALJ also found it significant that Plaintiff reported his first mood
disorder/depression episode occurred in 1995, but he kept working for approximately seven
Next, the ALJ concluded that treatment notes and psychiatric evaluations reported
Plaintiff had good memory, fair to good attention and concentration, and reported signs of
improvement, which weighed against his allegations of disabling symptoms associated with
The court notes, however, that when the ALJ refers to “psychiatric evaluations” he does not
always refer to formal evaluations; rather, some of these evaluations refer to Plaintiff’s observed
mood and affect at appointments for other medical or non-medical issues, such as requesting a
Med-9 Form. See, e.g., [#8-7 at 494-95].
schizophrenia. [Id.]. As to his substance abuse, the ALJ concluded that Plaintiff testified that he
quit using illicit drugs over ten years prior, and that the record demonstrated some improvement
despite Plaintiff’s allegations that his hallucinations persisted after he quit using illicit drugs.
[Id.]. The ALJ continued by discussing the medical opinion evidence, and properly supported
his conclusions with substantial evidence that Plaintiff suffered from only moderate nonexertional limitations. See [id. at 39-42].
Lastly, the ALJ considered Mr. Rigg’s daily activities. [Id. at 42]. The ALJ found that
Mr. Rigg had lived and worked with his mental condition for many years, and that Plaintiff goes
grocery shopping by himself without any difficulty.
[Id.]. Relatedly, the ALJ found that
Plaintiff’s allegations that he naps each day were not entirely consistent with his admitted daily
activities and the treatment he received. [Id.]. In addition, the ALJ concluded that Plaintiff’s
allegation that he prefers to be alone at all times was exaggerated, given his testimony that he
saw friends monthly and his reporting that he was around others daily. [Id.]. The ALJ also
noted that since the alleged onset date, Mr. Rigg had engaged in a relationship which was
supported by his subjective reports to medical providers over the years. [#8-2 at 40; #8-7 at 7].
Based on the foregoing, the court concludes that the ALJ properly evaluated Plaintiff’s
credibility. To start, the court agrees with Defendant that the ALJ did not label Plaintiff’s mental
status exams “benign” but, rather, explained that several exams contained benign findings that
weighed against the credibility of Plaintiff’s allegations of disabling symptoms. See Branum v.
Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004) (noting that “the consistency or compatibility of
nonmedical testimony with objective medical evidence” is a relevant factor in assessing a
claimant’s credibility); accord SSR 96–7p, 1996 WL 374186 at *5 (“One strong indication of the
credibility of an individual’s statements is their consistency, both internally and with other
information in the case record.”). 8 Similarly, the court does not find error in the ALJ’s reliance
on Plaintiff’s ability to work for several years despite his symptoms, as the ALJ affirmatively
linked his determination that Plaintiff could perform gainful employment since his alleged onset
of April 1, 2012, to substantial evidence in the record. See Hackett v. Barnhart, 395 F.3d 1168,
1173 (10th Cir. 2005). Plaintiff’s argument to the contrary essentially invites the court to
reweigh the evidence that the ALJ relied on in reaching this conclusion, but this court will not
substitute its judgment for the ALJ’s. See Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).
Next, as discussed supra, the record contains varying reports as to whether Plaintiff saw
improvement of his symptoms with treatment, and the ALJ was entitled to resolve such conflicts.
See Allman, 813 F.3d at 1333.
Finally, to the extent the ALJ improperly equated minimal daily activities with the ability
to sustain full-time employment, the court respectfully concludes that any error in doing so is
harmless, given that the ALJ affirmatively linked his credibility determination to substantial
evidence. Cf. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (approving harmless-error
analysis when “based on material the ALJ did at least consider (just not properly), we could
confidently say that no reasonable administrative factfinder, following the correct analysis, could
have resolved the factual matter in any other way.”). “[S]o long as the ALJ sets forth the specific
evidence he relies on in evaluating the claimant’s credibility, he need not make a formalistic
factor-by-factor recitation of the evidence…. [C]ommon sense, not technical perfection, is [the
court’s] guide.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (internal
On March 28, 2016, SSR 16-3p took effect and superseded SSR 96-7p, “eliminating the use of
the term ‘credibility.’” See TITLES II AND XVI: EVALUATION OF SYMPTOMS IN DISABILITY
CLAIMS, available at https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html.
Because the ALJ issued his decision in November 2015, the court analyzes her credibility
determination under SSR 96-7p.
quotations and citations omitted).
Moreover, as indicated above, the ALJ accounted for
moderate non-exertional limitations to Plaintiff’s ability to perform work, including an SVP level
2 or less, no complex tasks, no dealing with the general public, and only occasional dealing with
New and Material Evidence
Pursuant to sentence six of 42 U.S.C. § 405(g), the court may order the Commissioner to
review additional evidence, “but only upon a showing that there is new evidence which is
material and that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding.” See Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003) (holding,
pursuant to 20 C.F.R. § 404.970(b), “that...the Appeals Council [must] consider evidence
submitted with a request for review if the additional evidence is (a) new, (b) material, and (c)
related to the period on or before the date of the ALJ’s decision.”) (internal quotations, citations,
and alterations omitted). Evidence is material and a remand is appropriate “when a reviewing
court concludes that ‘the [Commissioner’s] decision might reasonably have been different had
that (new) evidence been before him when his decision was rendered.” Velasquez v. Astrue, No.
11-cv-03083-WYD, 2013 WL 1191239, at *9 (D. Colo. Mar. 21, 2013) (citing Cagle v.
Califano, 638 F.2d 219, 221 (10th Cir. 1981)). See, e.g., Lately v. Colvin, 560 F. App’x 751, 753
(10th Cir. 2014) (agreeing that evidence was properly not considered because it post-dated the
ALJ’s decision). If the Appeals Council rejects a plaintiff’s additional evidence, the court must
determine whether such evidence is new, material, and chronologically pertinent. Krauser v.
Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011).
Here, Plaintiff submitted to the Appeals Council new medical evidence from Dr. Jeff
Harazin—a December 28, 2015 consultative examination report and a January 6, 2016 Mental
Impairment Questionnaire. See [#8-2 at 8, 22]. Pursuant to the consultative exam, Dr. Harazin
diagnosed Plaintiff with schizoaffective disorder, bipolar type, reported that psychological
stressors were severe, assigned Plaintiff a GAF score of 45, and concluded that Mr. Rigg is
severely mentally ill. [Id. at 24-25]. He further indicated that Mr. Rigg had marked limitations
in the ability to: (1) understand and remember detailed instructions; (2) carry out detailed
instructions; (3) maintain attention and concentration for extended periods; (4) perform activities
within a schedule and consistently be punctual; (5) sustain ordinary routine without supervision;
(6) complete a workday without interruptions from psychological symptoms; (7) perform at a
consistent pace without rest periods of unreasonable length or frequency; (8) get along with coworkers or peers without distracting them; (9) maintain socially appropriate behavior; (10) travel
to unfamiliar places or use public transportation; (11) set realistic goals; and (12) make plans
independently. [Id. at 11]. When asked whether these symptoms and limitations were present
since April 1, 2012, Dr. Harazin answered affirmatively. [#23 at 25-26; #8-2 at 12]. The
Appeals Council rejected this new evidence, stating that the evidence related to a time after the
ALJ issued his decision in this matter; “[t]herefore, it does not affect the decision about whether
you were disabled beginning on or before November 2, 2015.” [#8-2 at 2]. See also Cdebaca v.
Colvin, No. 15-CV-02040-RBJ, 2016 WL 6212522, at *3 (D. Colo. Oct. 17, 2016) (holding that
similar language constituted a rejection of the plaintiff’s newly submitted evidence).
Plaintiff argues that the new evidence is material, “as it addressed Mr. Rigg’s mental
functioning during the period at issue,” and that the Appeals Council mistakenly refused to
consider it based on its belief that it was not chronologically relevant. [#12 at 26].
review, Defendant conceded that the Appeals Council should have considered Dr. Hazarin’s
opinion as temporally relevant. [#15 at 2]. But Defendant contends that Plaintiff has failed to
establish harmful error, as Dr. Harazin’s opinion would not change the ALJ’s decision because it
was predicated on the same medical evidence that the ALJ reviewed in rendering his decision.
[#15 at 13]. 9 Further, Dr. Harazin did not explain and/or support his opinion that these diagnoses
reached back to April 1, 2012, he was not a treating physician, and his opinion is inconsistent
with the record as a whole; thus, Plaintiff has not demonstrated that the new evidence would
have changed the Appeals Council or ALJ’s decision had it been before them. [Id. at 13-14].
The court respectfully agrees.
While Dr. Harazin’s opinion relates back to the period on or before the date of the ALJ’s
decision, see [#8-2 at 12; #12 at 25-26; #15 at 12], he failed to explain the basis for the
conclusion that the limitations that he identifies as “marked” were present since the alleged onset
date of April 1, 2012. The consultative exam occurred after the ALJ’s November 2, 2015
decision, and nothing in that report explains how Dr. Harazin could independently diagnose
Plaintiff’s conditions as existing in the period preceding or leading up to the ALJ’s decision. See
Krauser, 638 F.3d at 1329. The form indicates that Dr. Hazarin saw Mr. Rigg on a single
occasion, on December 28, 2015, and that he was not a treating physician. [#8-2 at 8].
Most notably, Dr. Harazin’s opinion regarding Mr. Rigg’s marked (rather than moderate)
limitations mirrors those of Dr. Sorensen and MA Miller—opinions the ALJ assigned little
weight to because of inconsistencies with the record as a whole (evidence Dr. Harazin also
reviewed in formulating his opinion). Additionally, Dr. Hazarin disagrees with the diagnoses of
Mr. Rigg’s prior health care providers, rejecting the prior diagnosis of schizophrenia. [#8-2 at
In doing so, Dr. Hazarin observed that Mr. Rigg’s cognition is “too clear” to be
But see [#15 at 12 (“Specifically, Plaintiff has shown that the Appeals Council would have
found the opinion sufficient to change the ALJ’s decision.”)]. The court concludes that this
sentence omitted the word “not” preceding “shown” based on Defendant’s subsequent
schizophrenic. [Id.]. But neither Dr. Hazarin nor Mr. Rigg explains how the level of cognition
observed by Dr. Hazarin reconciles with his determinations regarding memory, concentration, or
persistence. Dr. Hazarin also bases his determination that Plaintiff cannot work on Plaintiff’s
work history, rather than correlating that conclusion with particular limitations. [Id.]. Mr. Rigg
also provides no additional reasons as to why this opinion could reasonably change the Appeals
Council or the ALJ’s decision, particularly in light of the limitations already built into the RFC.
See Wilson, 602 F.3d at 1148. Accordingly, the court declines to remand this action to the
Appeals Council for further review of the new medical evidence.
For the reasons stated herein, the court hereby AFFIRMS the Commissioner’s final
decision, and this civil action is DISMISSED, with each party to bear his and her own fees and
A separate judgment will enter in favor of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security.
DATED: July 25, 2017
BY THE COURT:
s/Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge
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