Lindsey v. Commissioner of Social Security
Filing
44
OPINION AND ORDER affirming the decision of the Commissioner and denying Plaintiff's request to remand pursuant to sentence six. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. See Opinion and Order for details. Signed by Magistrate Judge Mac R. McCoy on 9/21/2017. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL LINDSEY,
Plaintiff,
v.
Case No: 2:16-cv-317-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Michael Lindsey’s Complaint (Doc. 1) filed on April 29,
2016. Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying his claim for supplemental security income. 1 The
Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed
by the appropriate page number), and the parties filed legal memoranda in support of their
positions. In addition, Plaintiff filed a Reply (Doc. 36) and a Sur-Reply Memorandum with
Exhibits (Doc. 41). The Commissioner filed a Response to Plaintiff’s Sur-Reply (Doc. 43). For
the reasons set out herein, the decision of the Commissioner is AFFIRMED pursuant to § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).
1
Plaintiff filed a Motion for Summary Judgment (Doc. 27) rather than a Memorandum in
Support of the Complaint as was required in the Scheduling Order (Doc. 23 at 1). The Court
entered an Order (Doc. 28) terminating the Motion for Summary Judgment and construing the
filing as a Memorandum in Support of the Complaint.
I.
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.
Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do his previous work or any other
substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.
Procedural History
On April 5, 2013, Plaintiff filed an application for supplemental security income
(“SSI”). 2 (Tr. at 138, 296-302). Plaintiff asserted an onset date of August 1, 1988. (Id. at 296).
Plaintiff later amended his onset date to April 5, 2013, the date of the Application. (Id. at 316).
Plaintiff’s application was denied initially on July 18, 2013 and on reconsideration on February
10, 2014. (Id. at 138, 152). A hearing was held before Administrative Law Judge (“ALJ”) Hope
G. Grunberg on December 3, 2015. (Id. at 54-99). 3 The ALJ issued an unfavorable decision on
2
Even though the record also contains an Application for Disability Insurance Benefits, Plaintiff
appears to be pursuing benefits under SSI only. (See Tr. at 305-06; Doc. 27 at 1).
3
A prior hearing was held before ALJ MaryJoan McNamara. (Tr. at 100-31). Apparently ALJ
McNamara was unable to complete the case, and ALJ Grunberg decided to hold a “brand-new
hearing.” (See Tr. at 57).
2
December 22, 2015. (Id. at 29-41). The ALJ found Plaintiff not to be under a disability from
April 5, 2013, the date the application was filed. (Id. at 29).
On April 6, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-6).
Plaintiff filed a Complaint (Doc. 1) in the United States District Court on April 29, 2016. This
case is ripe for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (See Doc. 24).
C.
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 4 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since April 5, 2013, the application date. (Tr. at 31). At step two, the
ALJ found that Plaintiff suffered from the severe impairment of hypertension; degenerative disc
4
Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
3
disease of the lumbar spine; mood disorder, NOS; unspecified anxiety disorder; impulse control
disorder; and cannabis use disorder (20 C.F.R. §§ 404.920(c)). (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 20 C.F.R. pt. 404, subpt. P,
app. 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (Id. at 32). At step four, the ALJ
determined that Plaintiff has the residual functional capacity (“RFC”) as follows:
to perform light work . . . except the claimant can occasionally climb ladders, ropes
or scaffolds. He should avoid workplace hazards such as unprotected heights or
dangerous, moving machinery. The claimant is limited to understanding,
remembering and carrying out simple, routine and repetitive tasks. There should
be no work requiring a high-quota production-rate pace (i.e., rapid assembly line
work where co-workers are side-by-side and the work of one affects the work of
the other). The claimant may make judgments on simple work, and respond
appropriately to usual work situations in a routine work setting that is repetitive
from day to day. Changes should be easily explained and no more than occasional.
The claimant may have occasional interactions with the public and co-workers.
There should be no work in teams or in tandem.
(Id. at 35).
The ALJ determined that Plaintiff had no past relevant work. (Id. at 39). Upon
consideration of Plaintiff’s age, education, work experience, and RFC, the ALJ found that jobs
exist in significant numbers in the national economy that the claimant can perform. (Id. at 40).
Specifically, the ALJ found Plaintiff was able to perform the following jobs: (1) tag inserter,
DOT # 222.567-018, SVP 2, light exertional level; (2) garment sorter, DOT # 222.687-014, SVP
2, light exertional level; and (3) labeler, DOT # 920.687-126, SVP 2, light exertional level. (Id.
at 40). The ALJ concluded that Plaintiff was not under a disability from April 5, 2013, through
the date of the decision. (Id. at 41).
4
D.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla—i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises six issues. As stated by Plaintiff they are:
(1)
The ALJ erred in failing to conclude that Plaintiff is incapable of performing any
one of the four basic mental demands of work;
(2)
The ALJ erred in assigning great weight to an opinion and then ignoring parts of
that opinion when determining Plaintiff’s RFC;
5
(3)
The ALJ erred by assigning improper weight to the medical opinions;
(4)
The ALJ erred in ignoring the treating physician rule;
(5)
The ALJ erred by failing to mention the diagnoses of Dr. Pappas and Dr. Lehninger
in the RFC determination; and 5
(6)
This action should be remanded under sentence six based upon a favorable
determination by the State Agency/DDS finding Plaintiff disabled with an onset
date of one (1) day after the unfavorable decision here. 6
(Doc. 41 at 1). The Court addresses each of these issues grouped logically below.
A.
Four Basic Mental Demands of Work
Plaintiff argues that the ALJ erred in her RFC finding that Plaintiff is capable of
performing any of the basic mental demands of work. (Doc. 27 at 4-7). The Commissioner
contends that the ALJ properly assessed Plaintiff’s RFC and included certain appropriate
accommodations as identified by the ALJ. (Doc. 29 at 20-24).
At the fourth step in the evaluation process, the ALJ is required to determine a plaintiff’s
RFC and, based on that determination, to decide whether a plaintiff is able to return to his or her
previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). The determination
of a plaintiff’s RFC is within the authority of the ALJ and along with a plaintiff’s age education
and work experience, the RFC is considered in determining whether a plaintiff can work. Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The RFC is the most a plaintiff is able to do
despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). In determining whether
a plaintiff can work, the ALJ must determine a plaintiff’s RFC using all of the relevant medical
5
Plaintiff raised this issue for the first time in the Reply (Doc. 36). The Commissioner
discussed Dr. Pappas’ and Dr. Lehninger’s opinion in the Commissioner’s Memorandum of Law
(Doc. 29 at 11-13) and, thus, the Court will address this issue as well.
6
Plaintiff raised this issue for the first time in the Sur-Reply (Doc. 41). The Commissioner
responded to this issue in the Response (Doc. 43).
6
and other evidence in the record. Phillips, 357 F.3d at 1238-39; 20 C.F.R. § 404.1520(e). An
ALJ must consider all of a plaintiff’s mental impairments that are sufficiently severe in
combination with all of a plaintiff’s impairments. Hurley v. Barnhart, 385 F. Supp. 2d 1245,
1256 (M.D. Fla. 2005).
Plaintiff claims that the evidence of record establishes that Plaintiff is unable to meet the
mental demands of work. (Doc. 27 at 7). To support this contention, Plaintiff cites to: (1)
records from February 2013; (2) his Case Manager, Anthony Garcia’s Third Party Function
Report on January 9, 2014; (3) his Case Manager, Jada Caron’s opinion of July 6, 2015; and (4)
diagnoses of August 31, 2015. (Id. at 4-7). The Court addresses each of Plaintiff’s contentions
in turn.
1.
February 2013 Records
Plaintiff asserts that the February 2013 records show that Plaintiff has mental
impairments that led to auditory hallucinations and suicidal ideation and, thus, this matter should
be reversed or alternatively remanded. These February 2013 records are, however, from a time
period prior to the amended alleged onset date of April 5, 2013. (See Tr. at 315). Even so, the
ALJ considered these records noting that “[s]hortly before the amended alleged onset date in this
case, the claimant was committed to inpatient hospital care under Florida’s Mental Health Act of
1971, also known as the ‘Baker Act,’ indicating he was considered at risk of self-harm (1F/7).”
(Tr. at 37). The ALJ acknowledged that at that time, Plaintiff showed significant anxiety and
suicidal ideation with possible situational components of Plaintiff’s symptoms, including
receiving a bill that triggered an anxiety attack. (Id.). The ALJ then reviewed records after the
alleged onset date from early 2014. (Id.). The ALJ determined that:
since the amended alleged onset date, the record suggests the claimant’s symptoms
have relented somewhat, treatment notes from early 2014 revealing full medical
7
compliance, the claimant endorsing symptoms improvement with treatment, while
notes from July 2014 show the claimant ‘[r]eport[ed] [his] agitation and anger
[were] controlled,’ leading providers to characterize the claimant as ‘[c]linically
stable with good response to treatment’ (6F/42).
(Id.).
The ALJ considered the medical records from February 2013, prior to the alleged
amended onset date. (Id. at 37). The ALJ then reviewed the medical records during the relevant
time period. (Id.). These later medical records indicated an improvement, including that
Plaintiff’s agitation and anger were controlled and Plaintiff appeared clinically stable. (Id.).
Thus, the ALJ thoroughly reviewed the medical records from February 2013, prior to the alleged
onset date, but relied upon the more recent relevant medical records that indicated improvement
to determine Plaintiff’s RFC. The Court finds that the ALJ properly considered the Plaintiff’s
medical records, including those from February 2013, in formulating Plaintiff’s RFC.
2.
Case Managers’ Reports and Opinions
Plaintiff argues that the ALJ erred in affording little weight to the Third Party Function
Report of Case Manager Anthony Garcia dated January 9, 2014 and the opinion of Case
Manager Jada Caron dated July 6, 2015. (Doc. 27 at 4-5, 6). Plaintiff cites to Mr. Garcia’s
Report, which states that Plaintiff does not focus well on assigned tasks; is disoriented; is
challenged in following instructions; is often hopeless; usually secludes himself; is often poorly
groomed; and has decreased attention span. (Id. at 5). Further, Plaintiff cites to the July 6, 2015,
opinion of Ms. Caron where she opines that Plaintiff is not capable of work due to depression,
anxiety, isolation, suicidal tendencies, memory issues, and untreated physical conditions. (Id. at
6). The Commissioner asserts that the ALJ supported her decision to afford the opinions of Mr.
Garcia and Ms. Caron little weight, noting that case managers were “other source opinions,”
their opinions conflicted with the preponderance of the evidence, and finally that Ms. Caron’s
8
opinion that Plaintiff could not maintain employment was an issue reserved to the
Commissioner. (Doc. 29 at 17-19).
To begin, case managers, such as Mr. Garcia and Ms. Caron, do not qualify as
“acceptable medical sources” pursuant to 20 C.F.R. § 404.1513(a) and SSR 06-03p, 2006 WL
2329939 (Aug. 9, 2006). 7 As such, non-acceptable medical sources cannot establish the
existence of a medical determinable impairment. See SSR 06-03p. Although not an “acceptable
medical source,” “other sources” are entitled to consideration as set forth in SSR 06-03p as
follows:
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical
sources,” such as nurse practitioners, physician assistants, and licensed clinical
social workers, have increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians and psychologists.
Opinions from these medical sources, who are not technically deemed “acceptable
medical sources” under our rules, are important and should be evaluated on key
issues such as impairment severity and functional effects, along with the other
relevant evidence in the file.
SSR 06-03p. SSR 06-03 provides that opinions from medical sources that are not acceptable are
important and should be evaluated to determine the severity and functional effects of an
impairment.
Against this backdrop, the Court finds that the ALJ properly determined that neither Mr.
Garcia nor Ms. Caron can be considered “acceptable medical sources” and are considered “other
sources.” (Tr. at 38). Thus, the ALJ appropriately determined that the information they
7
“Social Security Rulings are agency rulings published under the Commissioner’s authority and
are binding on all components of the Administration. Even though the rulings are not binding on
us, we should nonetheless accord the rulings great respect and deference.” Klawinski v. Comm’r
of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010) (internal citation omitted).
9
provided could not establish the existence of a medically determinable impairment, but may shed
light on the severity of the alleged impairments. (Id.).
To that end, the ALJ considered the statements of Mr. Garcia and Ms. Caron and found,
overall, that their statements were at odds with the preponderance of the evidence. (Tr. at 38).
The ALJ noted that Mr. Garcia’s report essentially mirrored Plaintiff’s subjective allegations,
while Mr. Garcia also added that Plaintiff often appeared poorly groomed with poor hygiene and
showed difficulty focusing and hopelessness. (Id.). The ALJ also noted that Mr. Garcia found
Plaintiff unable to manage a budget, drive, perform multistep tasks, and walk more than 2-3
blocks without the need to rest. (Id.). The ALJ found that Mr. Garcia failed to mention
Plaintiff’s daily bicycle rides, “which casts significant doubt on the degree of physical limitation
alleged by both the claimant and Mr. Garcia.” (Id.).
As for Ms. Caron’s opinion, the ALJ noted that Ms. Caron opined that Plaintiff was
unable to maintain employment due to depression, anxiety, isolation and suicidal ideation
tendencies, memory issues, and untreated physical limitations. (Id.). The ALJ found that Ms.
Caron exceeded her purview as the question of ability to maintain employment is reserved to the
Commissioner. (Id.).
In this case, the Court finds that the ALJ considered both the opinions of Mr. Garcia and
Ms. Caron. The ALJ properly compared these extreme findings with the other evidence of
record and found that these opinions were at odds with the preponderance of the evidence and,
accordingly, afforded them little weight. (Id.). The ALJ explained that fortunately, since the
amended alleged onset date, Plaintiff’s mental symptoms have relented somewhat, with
treatment notes from early 2014 revealing full medical compliance, symptom improvement with
treatment, and being clinically stable. (Id.). These treatment notes clearly contradict the findings
10
of Mr. Garcia and Ms. Caron. In addition, the ALJ gave great weight to the opinion of Yamir
Laboy, Psy.D., a State agency psychological consultant, who found Plaintiff moderately limited
in a number of areas such as the ability to understand and remember, but did not find that
Plaintiff had marked limitations in any area. (Id. at 38). Finally, the ALJ properly determined
that Ms. Caron exceeded her purview when finding Plaintiff unable to maintain employment.
(Id.). The decision of whether a claimant is disabled and unable to work is a dispositive issue
reserved for the Commissioner and, thus, this type of medical opinion is not given any special
significance, but may be taken into consideration. Kelly v. Comm’r of Soc. Sec., 401 F. App’x
403, 407 (11th Cir. 2010) (citing 20 C.F.R. §§ 404.1527(e), 416.927(e)). Thus, the Court finds
that the ALJ carefully considered the opinions of Mr. Garcia and Ms. Caron and did not err in
affording them little weight.
3.
August 31, 2015 Diagnosis
Plaintiff asserts that he was diagnosed on August 31, 2015 with: unspecified episodic
mood disorder, unspecified mood (affective) disorder, adjustment disorder with mixed anxiety,
depressed mood, and impulse control disorder. (Doc. 27 at 6). Although unclear, Plaintiff
appears to argue that the ALJ erred in her RFC finding based upon these diagnoses. First, a
“diagnosis [ ] is insufficient to establish that a condition cause[s] functional limitations.” Wood
v. Astrue, 2012 WL 834137, at *5 (M.D. Fla. Feb. 14, 2012) (citing Moore v. Barnhart, 405 F.3d
1207, 1213 n.6 (11th Cir. 2005)). Second, in this same treatment note, the record indicates that
Plaintiff was neat, clean, cooperative, anxious, appropriate to thought content, thought process
linear, not suicidal or homicidal ideations, alert and oriented in all spheres, memory intact,
concentration impaired per Plaintiff’s report, and insight/judgment intact. (Tr. at 591-92). Thus,
the treatment note suggests that Plaintiff was doing well overall. Further, due to Plaintiff’s
11
mental impairments, the ALJ accommodated Plaintiff by including numerous limitations in
Plaintiff’s RFC – such as limiting Plaintiff to understanding, remembering, and carrying out
simple, routine, and repetitive tasks, as well as other limitations. (See id. at 35, 37).
Accordingly, the Court finds that the ALJ did not err in formulating Plaintiff’s RFC and the
ALJ’s decision is supported by substantial evidence.
B.
Weight of Dr. Laboy’s Opinion
Plaintiff argues that the ALJ afforded significant weight to the opinion of Yamir Laboy,
Psy.D., but failed to accommodate Dr. Laboy’s finding that Plaintiff has moderate limitations in
his ability to maintain attention and concentration for extended periods of time. (Doc. 27 at 7-8).
The Commissioner responds that the ALJ properly considered Dr. Laboy’s entire opinion and the
RFC is consistent with and accounts for the limitations Dr. Laboy noted in his narrative
discussion. (Doc. 29 at 9-11).
As stated above, the RFC is the most a plaintiff is able to do despite his physical and
mental limitations. 20 C.F.R. § 404.1545(a)(1). In determining whether a plaintiff can work, the
ALJ must determine a plaintiff’s RFC using all of the relevant medical and other evidence in the
record. Phillips, 357 F.3d at 1238-39.
Yamir Laboy. Psy.D. is a State agency psychological consultant. (Tr. at 38). On January
13, 2014, Dr. Laboy completed a Mental Residual Functional Capacity Assessment. (Id. at 14850). Dr. Laboy found Plaintiff moderately limited in the ability to carry out detailed instructions;
the ability to maintain attention and concentration for extended periods; the ability to complete a
normal workday and workweek without interruptions for psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest period; the
ability to interact appropriately with the general public; the ability to accept instructions and
12
respond appropriately to criticism from supervisors; and the ability to get along with coworkers
or peers without distracting them or exhibiting behavioral extremes. (Id. at 148-49). Dr. Laboy
found that Plaintiff’s ability to maintain attention and concentration as well as persist on a task is
impaired by his depression that impacts his energy and motivation. (Id. at 149). Dr. Laboy
concluded that Plaintiff should be emotionally able to perform simple, routine, repetitive tasks in
settings with low social demands and which are not fast paced or quota driven. (Id. at 150).
In the decision, the ALJ generally agreed with Dr. Laboy’s opinion that Plaintiff was not
more limited than moderate and afforded Dr. Laboy’s opinion “as a whole great weight.” (Tr. at
38). The ALJ considered Dr. Laboy’s finding that Plaintiff was moderately limited in certain
areas. (Id. at 38). Further, the ALJ adopted Dr. Laboy’s conclusions by including specific
limitations in the RFC that mirror the limitations found by Dr. Laboy in his conclusions. (See id.
at 35; 150). Specifically, Dr. Laboy found Plaintiff was limited to performing simple, routine,
and repetitive tasks in a setting with low social demands that is not fast paced or quota driven.
(Id. at 150). The ALJ determined in Plaintiff’s RFC that:
The claimant is limited to understanding, remembering and carrying out simple,
routine and repetitive tasks. There should be no work requiring a high-quota
production-rate pace (i.e., rapid assembly line work where co-workers are side-byside and the work of one affects the work of the other). The claimant may make
judgments on simple work, and respond appropriately to usual work situations in a
routine work setting that is repetitive from day to day. Changes should be easily
explained and no more than occasional. The claimant may have occasional
interactions with the public and co-workers. There should be no work in teams or
in tandem.
(Id. at 35). Thus, the ALJ generally adopted Dr. Laboy’s limitations in formulating Plaintiff’s
RFC and accounted for Dr. Laboy’s findings of moderate limitations in certain areas by
accommodating Plaintiff as to these limitations. Accordingly, the Court finds that the ALJ’s
decision as to Dr. Laboy’s opinion and Plaintiff’s RFC are supported by substantial evidence.
13
C.
Weight of Dr. Kibria’s Opinion 8
Plaintiff argues that the ALJ failed to afford proper weight to the opinion of Eshan M.
Kibria, D.O., a consultative examiner. (Doc. 27 at 9). The Commissioner responds that the ALJ
properly afforded Dr. Kibria’s opinion partial weight. (Doc. 29 at 6).
Weighing the opinions and findings of treating, examining, and non-examining
physicians is an integral part of the ALJ’s RFC determination at step four. See Rosario v.
Comm’r of Soc. Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012). The Eleventh Circuit has
held that whenever a physician offers a statement reflecting judgments about the nature and
severity of a claimant’s impairments, including symptoms, diagnosis, and prognosis, what the
claimant can still do despite his or her impairments, and the claimant’s physical and mental
restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight
given to it and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F3d 1176, 1178-79
(11th Cir. 2011). Without such a statement, “it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational and supported by substantial
evidence.” Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
Even though examining doctors’ opinions are not entitled to deference, an ALJ is
nonetheless required to consider every medical opinion. Bennett v. Astrue, No. 308-CV-646-JJRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing McSwain v. Bowen, 814 F.2d
617, 619 (11th Cir. 1987); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir.
2004)). To evaluate a medical source, the same criteria are used whether the medical source is a
treating or non-treating doctor, with the following elements to be considered: “(1) the length of
8
Plaintiff also raises some issues concerning the ALJ’s treatment of the opinion of Ann Hart,
A.R.N.P. (Doc. 27 at 9-11). The Court addresses those issues in the next section of this Order
below.
14
the treatment relationship and the frequency of examination; (2) the nature and extent of any
treatment relationship; (3) supportability; (4) consistency with other medical evidence in the
record; and (5) specialization.” Id. (citations omitted).
Plaintiff states that on February 5, 2014, Dr. Kibria completed a Physical Consultative
Examination that indicated that Plaintiff had a slight left limp in his gait, had decreased range of
motion in his knees bilaterally, and decreased range of motion in his right hip flexion. (Doc. 27
at 9). Plaintiff argues the ALJ erred in assigning only partial weight to Dr. Kibria’s opinion.
(Id.). Plaintiff further argues that treatment notes from June 2, 2015 from Family Care East
support Dr. Kibria’s findings. (Id.). Plaintiff claims that these June 2 treatment notes found
irregularities in Plaintiff’s distal tibia and fibula, severe ankle valgus angulation, mild tibiotalar
osteoarthritis, and moderate to advanced spondylosis with mild rightward scoliosis of his lumbar
spine. (Id.). The Commissioner argues that Plaintiff failed to demonstrate any conflict between
Dr. Kibria’s report and the ALJ’s RFC finding. (Doc. 29 at 6). Further, the Commissioner states
that the ALJ properly explained that Dr. Kibria’s notes did not include a function-by-function
assessment of Plaintiff’s capabilities, thereby making it of limited use in determining Plaintiff’s
RFC. (Id. at 7).
On February 5, 2014, Dr. Kibria examined Plaintiff. (Tr. at 468-69). Dr. Kibria found
inter alia, that Plaintiff’s back was tender to palpation on the right, moderately limited in lumbar
extension, slightly limited in tilting left, slightly limited in tilting right, Plaintiff could not walk
on left heel, and Plaintiff had 5.5 strength in all extremities. (Id.). Dr. Kibria’s impression was
“[m]ost pain when walk[ing] or lift[ing] and trouble with bending and tying shoe laces.” (Id. at
469).
15
The ALJ afforded Dr. Kibria’s findings partial weight. (Id. at 39). The ALJ noted that
Dr. Kibria failed to include a function-by-function assessment of Plaintiff’s capabilities and,
thus, Dr. Kibria’s notes were of limited use in determining Plaintiff’s RFC. (Id.). The ALJ also
noted that even though Plaintiff had some difficulty in bending to tie his shoe, Dr. Kibria
reported that Plaintiff’s straight leg raise testing was negative bilaterally and Plaintiff
demonstrated full 5/5 strength in all extremities. (Id.).
In this case, the ALJ considered Dr. Kibria’s opinion and correctly noted that Dr. Kibria
failed to include a function-by-function analysis to assist the ALJ in determining Plaintiff’s
limitations, if any, to perform work. Before an ALJ may determine a plaintiff’s RFC, the ALJ
must first assess the plaintiff’s abilities on a function-by-function basis. Cobb v. Comm’r of Soc.
Sec., No. 6:13-CV-842-ORL-GJK, 2014 WL 4495208, at *3 (M.D. Fla. Sept. 12, 2014) (citing
SSR 96-8p; 20 C.F.R. § 404.1545(b)). Thus, the ALJ correctly noted that Dr. Kibria’s opinion
was of limited use due to the absence of a function-by-function analysis. Moreover, Plaintiff
fails to establish any conflict between Dr. Kibria’s opinion and Plaintiff’s RFC finding. Even
though Dr. Kibria found Plaintiff walked with a limp and had trouble bending, Dr. Kibria did not
include any limitations as to these complaints in his findings. (Tr. at 468-69). The Court finds
that the ALJ did not err in affording Dr. Kibria’s opinion partial weight, and the ALJ’s decision
as to this issue is supported by substantial evidence.
D.
Weight of Ann Hart, A.R.N.P.’s Opinion
Plaintiff claims that the ALJ erred in affording little weight to the opinion of Plaintiff’s
treating nurse practitioner, Ann Hart. (Doc. 27 at 9, 12). Specifically, Plaintiff argues that the
ALJ erred in assigning little weight to Ms. Hart’s opinion simply because she is not an
“acceptable medical source” and, additionally, the ALJ erred in finding that Ms. Hart’s opinion
16
was conclusory and factually inaccurate. (Id. at 12; Doc. 36 at 2-3). The Commissioner argues
in response that the ALJ properly considered Ms. Hart as an “other source” and properly
evaluated her opinion finding it extreme and unjustified. (Doc. 29 at 15-16).
The same legal standard concerning “other sources” that applied to the opinions of Mr.
Garcia and Ms. Caron also applies to Ms. Hart. Briefly, nurse practitioners do not qualify as
“acceptable medical sources” pursuant to 20 C.F.R. § 404.1513(a) and SSR 06-03p, 2006 WL
2329939 (Aug. 9, 2006). As with case managers, nurse practitioners as non-acceptable medical
sources cannot establish the existence of a medical determinable impairment, but are entitled to
consideration as to an impairment severity and functional effects together with all other relevant
evidence in the file. See SSR 06-03p.
In the decision, the ALJ gave little weight to Ms. Hart’s opinion. (Tr. at 39). The ALJ
found Ms. Hart not to be an acceptable medical source. (Id.). Further the ALJ found Ms. Hart’s
assessments that Plaintiff possessed no ability to follow work rules, relate to coworkers, deal
with the general public, use judgment, interact with supervisors, handle workplace stress,
function independently, maintain attention and concentration for extended periods, or
understand, remember, or carry out even simple job instructions to be extreme and unjustified by
the preponderance of the evidence. (Id.). Consequently, the ALJ afforded Ms. Hart’s opinion
little weight. (Id.).
In this case, the ALJ properly considered Ms. Hart’s opinion as an “other source”
pursuant to SSR 06-03p. Plaintiff asserts that Ms. Hart was overseen by two doctors – namely
Don Pappas, M.D. and Frank Lehninger, M.D. – but these physicians’ names and signatures
were not part of Ms. Hart’s treatment notes or her Medical Assessment. (See, e.g., 589-96, 604-
17
23). Thus, Ms. Hart’s opinion cannot establish the existence of a medical impairment, but may
be considered regarding the severity of an impairment and the functional effects. SSR 06-03p.
Even though an “other source,” the ALJ considered Ms. Hart’s opinion and found her
opinions to be extreme and unsupported by the evidence of record. (Tr. at 38-39). Briefly, the
ALJ noted that despite numerous stressors, Plaintiff did not require intensive or inpatient
treatment. (Tr. at 37). Further, the ALJ explained that fortunately, since the amended alleged
onset date, Plaintiff’s mental symptoms have relented somewhat with treatment notes from early
2014 revealing full medical compliance, symptom improvement with treatment, and being
clinically stable. (Id.). These treatment notes directly contradict Ms. Hart’s opinion. Finally,
the ALJ gave great weight to the opinion of Yamir Laboy, Psy.D., a State agency psychological
consultant, who found Plaintiff moderately limited in a number of areas such as ability to
understand and remember, but did not find that Plaintiff had marked limitations in any area. (Id.
at 38).
The Court finds that the ALJ considered the treatment notes and opinion of Ms. Hart.
The ALJ compared her opinion to the other evidence of record and found that Ms. Hart’s opinion
was extreme and unjustified by a preponderance of the evidence in the case. The ALJ cited to
other record evidence to support this finding. Accordingly, the Court finds that the ALJ
carefully considered the opinion of Ms. Hart and did not err in affording her opinion little
weight. Thus, substantial evidence supports the ALJ’s decision as to this issue
E.
Weight of Dr. Pappas’ and Dr. Lehninger’s Opinions
Plaintiff argues that the ALJ erred in failing to discuss the diagnoses of John Pappas,
M.D. and Frank Lehninger, M.D. (Doc. 36 at 4). Plaintiff claims that Dr. Lehninger detailed
Plaintiff’s history of depression, anxiety, and psychosis. (Id.). Plaintiff also asserts that Dr.
18
Pappas found Plaintiff’s daily activities were limited. (Id.). Plaintiff claims that these
physicians’ records show limitations beyond just diagnoses. (Id. at 4-5).
The Commissioner argues that Dr. Pappas’ and Dr. Lehninger’s treatment notes support
the ALJ’s RFC finding that Plaintiff could perform simple, routine, repetitive work with the
additional social and adaptation limitations found by the ALJ. (Doc. 29 at 12). The
Commissioner claims that the mental examinations by these sources were generally benign and
indicated Plaintiff was able to perform work as outlined in Plaintiff’s RFC. (Id.).
On July 1, 2015, Dr. Pappas evaluated Plaintiff. (Tr. at 600-603). Upon examination,
Dr. Pappas found Plaintiff cooperative, euthymic, affect appropriate, thought process linear, no
suicidal or homicidal ideations, alert and oriented in all spheres, memory intact, concentration
intact, insight/judgment intact. (Id. at 602). Dr. Pappas diagnosed Plaintiff with mood disorder
NOS. (Id. at 603). On November 4, 2015, Plaintiff was evaluated by Dr. Lehninger. (Id. at 597599). Upon examination, Dr. Lehninger found Plaintiff to be neatly dressed; having good
hygiene; cooperative; pleasant; polite; a good historian; thoughts logical and goal-directed;
speech normal; denying any hallucinations; insight and judgment good; alert and oriented; and
denying any suicidal or homicidal ideations. (Id. at 598). Dr. Lehninger diagnosed Plaintiff with
unspecified depressive disorder, unspecified anxiety disorder, cannabis use disorder, moderate in
sustained remission. (Id. at 599). Plaintiff reported that his current medication regimen had been
helpful in the treatment of his depression/anxiety and history of psychosis. (Id.).
Although the ALJ did not specifically mention Dr. Pappas and Dr. Lehninger, she did
refer to Dr. Lehninger’s treatment notes in conjunction with Plaintiff not requiring intensive or
inpatient treatment due to stressors. (See id. at 37). Upon consideration of the records cited by
Plaintiff as to these two physicians, the Court finds that even if the ALJ erred in failing to
19
mention these treating physicians and assign weight to their opinions, the error was harmless.
Winschel, 631 F3d at 1178-79; Pichette v. Barnhart, 185 F. App’x 855, 856 (11th Cir. 2006)
(holding remand not warranted when an ALJ commits harmless error). The error was harmless
because these opinions were consistent overall with the ALJ’s conclusion that with certain
accommodations, Plaintiff’s mental limitations would not preclude him from performing work.
See Colon v. Colvin, 660 F. App’x 867, 870 (11th Cir. 2016). In addition, Plaintiff failed to
identify: (1) any additional limitations found in these doctors’ records that are not reflected in
Plaintiff’s RFC; or (2) any conflicts between these doctors’ records and Plaintiffs’ RFC.
Accordingly, the Court finds that even if the ALJ erred in failing to discuss or weigh the opinions
of Dr. Pappas and Dr. Lehninger, the error was harmless because their opinions were consistent
with the ALJ’s conclusions and consistent with Plaintiff’s RFC finding.
F.
Subsequent Favorable Decision
In the Sur-Reply (Doc. 41) Plaintiff contends that he received a subsequent favorable
determination by the State Agency/DDS, finding Plaintiff disabled with an onset date of
December 23, 2015, one day after the December 22, 2015 Unfavorable Decision issued by the
ALJ in the instant case. (Doc. 41 at 1). 9 Plaintiff seeks remand under sentence six of 42 U.S.C.
§ 405(g) based upon this alleged new, material, and chronologically relevant evidence. (Id.).
The Commissioner argues in response that as an initial matter, Plaintiff’s partial reliance on a
9
Plaintiff states that the onset date for the subsequent favorable decision changed from
December 23, 2015 to April 1, 2016 based upon the rule that SSI benefits may be awarded no
earlier than the date the SSI application was filed. (Doc. 41 at 1 n.1; 129-30). In this case,
Plaintiff maintains that a second SSI application could not have been filed until after the Appeals
Council in the instant case issued its decision. (Id.). Here, the Appeals Council issued its
decision on April 6, 2016. (Id.). Thereafter, on April 29, 2016, Plaintiff filed his second
application. (Id.). Plaintiff asserts that because the subsequent SSI claim was filed in April, the
onset date becomes the first day of the month in which the claim was filed. (Id.).
20
subsequent favorable decision is misplaced. (Doc. 43 at 3). Further, the Commissioner contends
that: (1) Plaintiff failed to show that the treatment notes could reasonably be expected to change
the ALJ’s decision; (2) the vast majority of the treatment notes post-date the ALJ’s December
22, 2015 decision and are not chronologically relevant; and (3) Plaintiff failed to establish good
cause for not submitting certain medical records during the administrative proceedings in this
case. (Doc. 43 at 3-5).
1.
Legal Standard for a Subsequent Favorable Decision
A later favorable decision – in and of itself – is not evidence for the purposes of 42
U.S.C. § 405(g). Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015), cert.
denied, 136 S. Ct. 2487 (2016). “A decision is not evidence any more than evidence is a
decision.” Id. Nevertheless, the evidence supporting the subsequent decision may constitute
new and material evidence under § 405(g). Id. at 821-22. New additional evidence that was
presented to the Court and not to the administrative agency must be considered under a Sentence
Six analysis. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007).
Sentence Six provides a federal court “with the power to remand the application for benefits to
the Commissioner for the taking of additional evidence 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.’” Id. (quoting 42 U.S.C. § 405(g)).
To obtain a remand under sentence six the claimant must establish that:
(1) there is new, noncumulative evidence; (2) the evidence is “material,” that is,
relevant and probative so that there is a reasonable possibility that it would change
the administrative result, and (3) there is good cause for the failure to submit the
evidence at the administrative level.
Hunter, 808 F.3d at 821 (quoting Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986);
internal quotations omitted). Here, since a good cause analysis and a materiality analysis
21
are dispositive of whether a remand under sentence six is warranted as to the additional
evidence, the Court will address these two issues.
a.
Whether Good Cause Exists
Plaintiff asserts good cause exists for not submitting the additional evidence
during the administrative process. (Doc. 41 at 3). Plaintiff claims that Dr. Pappas’
January 13, 2016 medical records were not submitted to counsel and were not part of the
administrative record here. (Id. at 3). Plaintiff claims that Dr. Pappas’ January 13, 2016
Medical Source Statement “was never sent to the Plaintiff and was only discovered upon
receipt of the underlying evidence supporting the subsequent favorable decision as can be
seen by the fax date on this document from the David Lawrence Center to the State
Agency (i.e. July 14, 2016 at 11:29am).” (Id. at 5 n.22). Plaintiff further claims that the
subsequent favorable decision was based in part on Dr. Pappas’ January 13, 2016
Medical Source Statement and Dr. Pappas’ and Ms. Hart’s May 27, 2016 Supplemental
Mental Impairment Questionnaire. (Id. at 3).
The Commissioner asserts that Plaintiff has not established good cause for failing
to submit the Medical Source Statement and Questionnaire during the administrative
proceeding. (Doc. 43 at 5). The Commissioner contends that Plaintiff does not identify
any reason for not requesting and forwarding Dr. Pappas’ complete Medical Source
Statement to the Appeals Council while it reviewed the ALJ’s decision. (Id. at 6).
Regarding good cause, the Eleventh Circuit has held:
[T]he good cause requirement reflects a congressional determination to prevent the
bad faith manipulation of the administrative process. Milano v. Bowen, 809 F.2d
763, 767 (11th Cir. 1987). The requirement was designed to prevent claimants from
attempting to withhold evidence and to avoid the danger of encouraging them to
seek after-acquired evidence, and then use such evidence as an unsanctioned
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backdoor means of appeal. Id. (quoting Szubak v. Secretary, 745 F.2d 831, 834 (3d
Cir. 1984)).
Hunt v. Colvin, No. 4:13-CV-02081-JEO, 2015 WL 727942, at *6 (N.D. Ala. Feb. 19, 2015)
(internal quotations omitted). Further, neither procrastination nor oversight are appropriate bases
to establish good cause. See Caulder, 791 F.2d at 879; Rosenkranz v. Soc. Sec. Admin., Comm’r,
No. 4:12-CV-2249-AKK, 2013 WL 2108144, at *5 (N.D. Ala. May 15, 2013).
Here, the medical records dated November 4, 2015, December 14, 2015, January 13,
2016, and February 18, 2016 all existed prior to the Appeals Council’s decision of April 6, 2016.
(Doc. 41-1 at 1-19). Plaintiff’s only argument is that these records—especially the January 2016
Medical Source Statement from Dr. Pappas – were not sent to Plaintiff’s counsel. The Court
attributes the failure to obtain these records during the administrative process as an oversight on
Plaintiff’s counsel’s part. Clearly, Plaintiff was aware that additional records existed based upon
Plaintiff having visited these treating sources during the relevant time period. Thus, the Court
finds no good cause to remand under sentence six as to these records.
The remaining medical records were not in existence prior to the completion of the
administrative process. Thus, the Court finds good cause for the failure to submit the medical
records dated April 21, 2016 through January 13, 2017 at the administrative level. (Id. at 18136); Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1985).
b.
Whether the Additional Evidence Is Material, Relevant,
and Probative
Plaintiff argues that the new evidence is material and chronologically relevant.
(Doc. 41 at 3-6). Plaintiff claims that if the ALJ here had considered Dr. Pappas’
Medical Source Statement dated January 13, 2016 and the May 5, 2016 Supplemental
Mental Impairment Questionnaire signed by Dr. Pappas and Ms. Hart, then there exists a
23
reasonable possibility that these records would change the administrative result. (Doc. 41
at 8; Doc. 41-1 at 13-15, 133-34). The Commissioner argues that the vast majority of the
treatment notes post-date the ALJ’s December 22, 2015 decision. (Doc. 43 at 3). Thus,
the Commissioner contends that these treatment notes are not relevant to the time period
of this decision. (Id.). Further, the Commissioner maintains that the treatment records
closest in time to the decision show Plaintiff doing well. (Id. at 3-4). The Commissioner
further maintains that Dr. Pappas’ January 13, 2016 Medical Source Statement and Dr.
Pappas’ and Ms. Hart’s May 27, 2016 Supplemental Impairment Questionnaire are
similar to statements in the administrative record that the ALJ discounted in her decision.
(Id. at 4). Finally, the Commissioner argues that Plaintiff fails to show why these new
records would be expected to change the administrative result. (Id. at 4-5).
For evidence to be material, it must relate to a time period before the eligibility
determination at issue. Carroll v. Soc. Sec. Admin., Comm’r, 453 F. App’x 889, 892
(11th Cir. 2011). When reviewing an ALJ’s decision, the Court must look to whether a
plaintiff was entitled to benefits during a specific period of time, “which period was
necessarily prior to the date of the ALJ’s decision.” Wilson v. Apfel, 179 F.3d 1276, 1279
(11th Cir. 1999). Here, the ALJ rendered her decision on December 22, 2015. Thus, the
medical records must relate to the period of time on or before December 22, 2015.
First, the Court will begin with the records dated prior to the date the Appeals
Council rendered its decision. As stated above, Plaintiff failed to establish good cause for
failing to produce the medical records dated November 4, 2015 through February 18,
2016 during the administrative process. (Doc. 41-1 at 1-19). Thus, the Court will not
24
consider these medical records and will focus on the medical records dated April 21,
2016 through January 13, 2017. (Doc. 41-1 at 17-136).
Of these remaining records, Plaintiff specifically cites to the following medical
evidence: (1) Plaintiff’s involuntary in-patient hospitalization on May 2, 2016; (2) a
Supplemental Mental Impairment Questionnaire completed by Dr. Pappas and Ms. Hart
dated May 27, 2016; (3) a voluntary inpatient hospitalization on December 24, 2016; and
(4) an inpatient hospitalization on January 13, 2017. (Doc. 41 at 3-4).
Beginning chronologically, Plaintiff was involuntarily committed to a hospital on
May 2, 2016 after reporting suicidal ideations. (Doc. 41-1 at 25). Plaintiff reported
having thoughts of overdosing on his medication. (Id.). Plaintiff was discharged on May
13, 2016. On May 27, 2016, Dr. Pappas and Ms. Hart signed a Supplemental Mental
Impairment Questionnaire that found Plaintiff “suffers from a mental impairment that
significantly interferes with daily functioning.” (Id. at 133-34). On December 24, 2016,
Plaintiff was voluntarily admitted to the hospital for suicidal ideations with plans to take
all of his pills. (Id. at 50-57). Lastly, Plaintiff was voluntarily admitted to the hospital
for “endors[ing] SI [suicidal ideations] with plans to cut himself or OD.” (Id. at 118125).
Plaintiff fails to establish how these medical records relate to the relevant time
period prior to the ALJ’s December 22, 2015 decision. The Court is tasked with
reviewing the ALJ’s decision during a specific period of time – that is the time period
prior to the ALJ’s decision. Carroll, 453 F. App’x at 892. While these medical records
begin approximately four (4) months after the ALJ’s decision and may be relevant to
whether Plaintiff’s condition deteriorated during this subsequent time period, they are not
25
probative of the relevant time period for this claim. See Wilson, 179 F.3d at 1278
(holding that a doctor’s opinion dated one year after the decision may be relevant to
determine whether a plaintiff’s condition deteriorated and subsequently entitled her to
benefits, but was not probative of any issue in the case at hand). Thus, the Court finds
that Plaintiff failed to establish that the medical records dated April 21, 2016 through
January 13, 2017 are material, relevant, and probative such that they would change the
administrative result in this case. Accordingly, the Court finds that a remand pursuant to
sentence six is not warranted in this case.
III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards. Further, the Court finds that a remand pursuant to sentence six is not
warranted.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g) and further Plaintiff’s request to remand this action pursuant to sentence six is
DENIED. The Clerk is directed to enter judgment accordingly, terminate any pending motions
and deadlines, and close the case.
26
DONE AND ORDERED in Fort Myers, Florida on September 21, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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