Walker v. Commissioner of Social Security
MEMORANDUM OF DECISION: The final decision of the Commissioner is AFFIRMED. The Clerk is directed to enter a separate judgment in favor of the Commissioner and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 6/30/2014. (PAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
PHILIP L. WALKER,
Case No: 6:13-cv-936-Orl-GJK
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OF DECISION
Plaintiff Philip L. Walker (the “Claimant”) brings this action pursuant to the Social
Security Act (the “Act”), as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final
decision of the Commissioner of the Social Security Administration (the “Commissioner”)
denying his claim for Social Security benefits.
Doc. No. 1.
Claimant argues that the
Administrative Law Judge (the “ALJ”) erred by failing to: (1) demonstrate good cause, supported
by substantial evidence, for giving little weight to the opinions of Claimant’s treating physician,
Dr. Chewning; and (2) articulate specific reasons, supported by substantial evidence, for finding
Claimant’s subjective statements not credible to the extent they conflict with the ALJ’s residual
functional capacity assessment (the “RFC”). Doc. No. 19 at 11-16. For the reasons set forth below,
the final decision of the Commissioner is AFFIRMED.
Claimant alleges an onset of disability date as of April 17, 2009, due to neck and back pain.
R. 145-46. In 2006, a magnetic resonance imaging (“MRI”) of Claimant’s lumbar spine revealed
a herniated nucleus pulposus at L5-S1 with left-sided radiculitis. R. 414. Claimant underwent
back surgery, physical therapy, and pain management services. R. 18. Beginning in 2008,
Claimant has been treated primarily by Dr. John Chewning, an osteopathic physician. R. 280-310,
359-83, 390-407. The issues in the case involve: two opinions offered by Dr. Chewning - - an
April 23, 2009 written opinion (R. 359) and Dr. Chewning’s March 2, 2012 deposition where he
testified as to Claimant’s functional limitations (R. 360-81); the Claimant’s subjective statements
regarding his functional limitations (R. 28-56); and the ALJ’s findings related thereto (R. 18-21).
A. Dr. Chewning’s Opinions.
Claimant argues the ALJ failed to articulate good cause, supported by substantial evidence,
for giving little weight to Dr. Chewning’s opinions. Doc. No. 19 at 11-14. The ALJ’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) and Richardson v. Perales, 402 U.S.
389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The District
Court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that
of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004).
Weighing the opinions and findings of treating, examining, and non-examining physicians
is an integral part of the ALJ’s sequential evaluation process for determining disability. In cases
like this one, involving the ALJ’s handling of a treating physician’s medical opinion, “substantialevidence review . . . involves some intricacy.” Gaskin v. Commissioner of Social Security, 533
Fed.Appx. 929, 931 (11th Cir. Aug. 14, 2013) (unpublished).1 In Winschel v. Commissioner of
Social Security, 631 F.3d 1176, 1178-79 (11th Cir. 2011), the Eleventh Circuit 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.
Id. (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th
Cir. 1987)). The Eleventh Circuit stated that “‘[i]n the absence of 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.’” Winschel, 631 F.3d at 1178-79 (quoting Cowart
v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981) (emphasis added)). See also MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (failure to state with particularity the weight given
to opinions and the reasons therefor constitutes reversible error); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (failure to clearly articulate reasons for giving less weight to the
opinion of treating physician constitutes reversible error).
Absent good cause, the opinions of treating physicians must be accorded substantial or
considerable weight. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988).
Good cause exists when the: “(1) treating physician's opinion was
not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician's opinion was conclusory or
inconsistent with the doctor's own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir.2004) (citations
omitted); see also Edwards v. Sullivan, 937 F.2d 580, 583 (11th
Cir.1991); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th
In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See 11th Cir. R. 36-2.
Johnson v. Barnhart, 138 Fed.Appx. 266, 269 (11th Cir. 2005).
On April 23, 2009, Dr. Chewning provided the following written opinion:
[Claimant] has been a patient of mine since January 21, 2008. He is
again applying for [benefits] due to failed back surgery. Patient
restrictions include but not limited to: no lifting greater than 10 lbs,
no repetitive bending, stretching, or lifting. No prolonged standing
for more than 1/2 hour. Must be allowed to sit or lay down as
needed. Patient is unable to work at this time.
Thus, Dr. Chewning opines that Claimant’s functional limitations preclude gainful
activity. R. 359.
On March 2, 2012, Claimant’s counsel deposed Dr. Chewning concerning his treatment of
Claimant and Dr. Chewning’s opinions about Claimant’s functional limitations. R. 360-81. Dr.
Chewning testified that he treated Claimant every other month for two years until 2010, and then
again four months prior the deposition. R. 364. Dr. Chewning opined that Claimant is diagnosed
with lumbago, which means chronic back pain, malaise and fatigue, joint pain, and elbow pain. R.
365-66. When asked about the objective findings that support Claimant’s chronic pain, Dr.
Chewning testified as follows:
He has paraspinal fullness, which means the muscles are very tight
on either side of the spine. He has an inability to stand without
assistance, which for someone of his age is - - is very rare. He walks
very slowly. He has a lot of tenderness on palpation of his back
from shoulders all the way down to the sacral spine.
R. 366. With respect to Claimant’s inability to stand without assistance, Dr. Clewing stated that
he observed Claimant’s wife assisting Claimant in standing in Dr. Chewning’s lobby. R. 367. Dr.
Chewning opined that the source of Claimant’s chronic pain was “either a bulging disc or it was
possibly a bone spur.” R. 368. Dr. Chewning stated that he did not know what the pathology is
for Claimant’s malaise and fatigue. R. 368. Dr. Chewning also stated that, in addition to
Claimant’s chronic back pain, Claimant has elbow pain bilaterally, worse on the right, which
“makes it impossible for him to fully extend his right elbow beyond . . . 120 degrees, but he also
has difficulty lifting himself up.” R. 369. Dr. Chewning testified that he is unaware of the cause
of Claimant’s elbow pain. R. 369.
In terms of treatment, Dr. Chewning testified that Claimant “has seen pain management,”
undergone physical therapy, Dr. Chewning has tried lumbar injections multiple times without
relief, and medications, but the treatment has been unable to control Claimant’s pain. R. 369-70.
Dr. Chewning opined that Claimant’s impairments make “it almost impossible” for Claimant to
perform work activity. R. 368. Claimant is “unable to stand for extended period, he’s unable to
sit for extended periods of time, he can’t get up without help, and due to the pain he’s - - he has a
difficult time focusing on any activities or concentrating mentally for any extended period.” R.
Dr. Chewning also testified regarding his April 23, 2009 opinion. R. 372-75.
Chewning testified that, in his opinion, Claimant’s prior back surgery was unsuccessful because
as long as Dr. Chewning has been treating Claimant he has been “unable to walk or move.” R.
Dr. Chewning suspects that further surgery would not eliminate Claimant’s functional
limitations. R. 373.
Dr. Chewning stated that he formed his opinions regarding Claimant’s
functional limitations based on the following:
Some of it was extensive history, sitting with him and his wife,
Marsha, and going over what he could do. Some of it was actually
testing in the office. I would have the patient try to bend his knees
and see how far down he could go before he had pain. I would take
him to his functional limitations with standing and bending and
lifting objects in the office. I would take histories from him, how
much he could lift and what he was able to do and what he wasn’t
able to do.
R. 373-74. Thus, Dr. Chewning stated that he formed his opinions regarding Claimant’s
functional limitations through extensive histories obtained from Claimant and his wife, as well as
testing in Dr. Chewning’s office. R. 374.
With respect to the reasons why Claimant cannot engage in prolonged standing, Dr.
Chewning testified as follows:
Because he has pain in his lower back and as he stands it builds up
around his sacrum. If he’s able to sit or move or - - or lean up against
something, he can tend to alleviate it, but it’s about every 10 or 15
minutes. The longest I was able to get him standing still in one place
was about 10 minutes approximately before the pain got to him. I
had him sit and stand - - not sit and stand. I had him standing during
one of our offices visits just to see how far he could go, and he
wasn’t able to even get through the beginning history.
R. 374. Regarding Claimant’s inability to engage in prolonged sitting, Dr. Chewning stated:
Unfortunately he has back pain also when sitting. And the only time
he seems to be truly pain free is when he’s laying down supine on
his back, and even then he requires pillows to - - to lift his knees up
and shift his hips around.
R. 375. Thus, Dr. Chewning explained why, in his opinion, Claimant cannot engage in prolonged
standing or sitting. R. 374-75.
Dr. Chewning opined that, due to chronic pain, Claimant could
not perform a sedentary job, which required sitting, on and off, for six hours in an eight-hour
workday. R. 375. Dr. Chewning opined that Claimant would be required to lay down for 10 to 20
minutes every thirty minutes, and that Claimant would miss work more than 3 times per month
due to his impairments. R. 376, 379. Dr. Chewning stated that his April 23, 2009 opinion remains
an accurate reflection of Claimant’s current limitations. R. 377-78.
In the decision, the ALJ found, at step-two, that Claimant suffers from a severe impairment
of “degenerative disc disease of the lumbar spine status post surgical repair.” R. 15. The ALJ
determined that Claimant retains the following RFC:
[T]he claimant had the [RFC] to perform sedentary work . . .
involving standing/walking about two hours and sitting for up to six
hours in an eight-hour workday with occasional breaks; never
climbing ladders, ropes, or scaffolds, but occasionally climbing
ramps/stairs, balancing, stooping, kneeling, crouching, and
crawling. In addition, the claimant must avoid concentrated
exposure to wetness and vibration. Due to chronic pain complaints,
the claimant is limited to simple, routine, and repetitive task
performed in a work environment free of fast paced production
requirements involving only simple work related decisions and
routine work place changes.
R. 17. Thus, Dr. Chewning’s opinions are more restrictive than the ALJ’s RFC finding. Compare
R. 17 with R. 359-81. In arriving at the RFC determination, the ALJ provides a good summary of
the medical record, including a June 2009 MRI and Dr. Chewning’s treatment records. R. 18-20.
The ALJ states the following with respect to Dr. Chewning’s opinions:
On April 23, 2009 Dr. Chewning provided a statement indicating
the claimant was limited to lifting no greater than 10 pounds; was
restricted from repetitive bending, stretching, or lifting; must be
allowed to sit or lie down as needed; and no prolonged standing for
more than 1/2 hour. Dr. Chewning stated that the claimant was
unable to work at that time. In addition, in a March 2, 2012
deposition, Dr. Chewning reported the claimant could lift 10
pounds, was unable to stand or sit for extended periods, required
frequent breaks to lie down (every 30 minutes for 10-20 minutes),
and could not get up without help. He estimated the claimant’s
symptoms would interfere with attention and concentration 75-80%
of the day and he would likely be absent from work more than three
days a month because of his condition or treatment.
In reviewing Dr. Chewning’s opinions, it is noted that many
limitations reported by the doctor in his April 2009 statement are
consistent with the [RFC] determination described in this decision.
Specifically, the RFC limits the claimant to sedentary work
requiring lifting/carrying up to 10 pounds occasionally, and postural
activities are limited to only an occasional basis. While sedentary
work certainly allows the opportunity to sit as noted on Dr.
Chewning’s opinion, treatment notes for the relevant period do not
describe objective clinical signs or sufficiently abnormal imaging
studies to support the need to lie down on an as needed basis. The
doctor’s opinion that the claimant is unable to work is an opinion
reserved for the Commissioner and is not a medical opinion under
the regulations. Because the opined severity of the claimant’s
severe impairment by Dr. Chewning is not fully supported by
objective medical evidence and the claimant’s course of treatment
discussed above herein, only limited weight is accorded to Dr.
Chewning’s April 23, 2009 opinion, and the claimant has been
limited to sedentary work with postural limitations.
Regarding Dr. Chewning’s deposition statement in March 2012, it
is noted that this was provided following a substantial gap in the
claimant’s history of treatment, with only one documented visit
between February 2010 and March 2012, the date of the deposition.
At that single visit, on September 30, 2011, results of Dr.
Chewning’s physical examination of the claimant were essentially
normal, with normal stability, full range of motion of all extremities,
grip strength equal and strong bilaterally, normal muscle strength
and tone, and normal gait and station. Dr. Chewning documented
that the claimant exhibited no tenderness to palpation, no pain, and
no muscle spasms. Such normal findings are not consistent with
Dr. Chewning’s statements of the claimant’s inability to stand
without assistance, and his comment that the claimant had been
unable to walk or move since he had treated the claimant (2008).
Further, Dr. Chewning’s report of elbow pain and a limitation of
upper extremity use is not consistent with the above noted
examination findings or the testimony of the claimant that he had no
problems using his arms or hands; and Dr. Chewning’s report of the
claimant’s ability to sit only 10 minutes is not consistent with the
claimant’s report of his ability to drive for 30 minutes. Thus, Dr.
Chewning’s assessment of the claimant’s abilities and level of
functioning reported during the deposition appear to overstate the
Dr. Chewning’s opinion was considered in light of the regulatory
factors, including supportability and consistency, and the [ALJ]
finds the opinion is not supported by his own treatment records that
reflect essentially normal findings, imaging studies that failed to
reveal more than mild abnormalities of the lumbar spine, or the selfreported abilities of the claimant at the hearing. During the relevant
period, the claimant’s impairments were treated conservatively and
the doctor’s deposition was taken with a history of only one
essentially normal examination documented in two years. For these
reasons, [the ALJ] give[s] little weight to the findings and opinions
expressed by Dr. Chewning in the deposition.
R. 20-21. Thus, the ALJ gives a good summary of Dr. Chewning’s opinions. R. 20. With respect
to Dr. Chewning’s April 23, 2009 opinion, the ALJ gave it limited weight for the following
reasons: (1) Dr. Chewning’s treatment notes do not describe objective clinical signs nor do imaging
studies reflect the need to lie down on an as needed basis; and (2) an opinion as to whether a
claimant is able to work is reserved for the Commissioner and is not part of a medical opinion. R.
21. Regarding, Dr. Chewing’s opinions offered at his deposition, the ALJ gives them little weight
because: (1) they are not supported by his own treatment records that reflect essentially normal
findings; (2) imaging studies failed to reveal more than mild abnormalities of the lumbar spine;
(3) Claimant’s testimony that he can drive for thirty minutes conflicts with Dr. Chewing’s opinion
that Clamant cannot sit for more than 10 minutes; and (4) notes from Dr. Chewing’s most recent
treatment of Claimant show largely normal findings. R. 21.
In short, the ALJ’s decision demonstrates good cause, supported by substantial evidence,
for giving limited or little weight to both of Dr. Chewing’s opinions. In the decision, the ALJ
correctly notes that a 2009 MRI “showed only mild diffuse disc bulging at L3-4 and L4-5, and no
protrusion or significant stenosis, as well as postoperative changes at L5-S1 consistent with
scarring.” R. 18 (citing R. 280-81).2 The record contains no other diagnostic imaging studies or
or other testing during the relevant period relating to Claimant’s back and pain impairments. Thus,
substantial evidence supports the ALJ’s finding that Dr. Chewning’s opinions are inconsistent with
diagnostic imaging studies.
The ALJ also accurately describes Dr. Chewning’s treatment records, stating:
Physical examinations have shown no substantial abnormalities and
documented clinical observations have revealed no significant
functional limitations. The claimant reported waxing and waning of
his pain symptoms, and/or limitations of motion in the spinal region.
However, treatment records consistently note the claimant was in no
acute distress, and had normal stability, normal muscle strength, and
normal muscle tone, with no evidence of muscle atrophy or
significant sensory or reflex deficits. The claimant’s gait and station
were described as normal and there is no evidence of the need for
any assistive device. In September 2011, the claimant was found to
The MRI was conducted on March 16, 2009. R. 280. In the decision, the ALJ mistakenly states that it was
conducted in June of 2009. R. 18.
have full range of motion in all four extremities, with grip strength
equal and strong bilaterally, which is consistent with the claimant’s
testimony of no difficulty with the use of his arms or hands.
Overall, during the relevant period between April 2009 through
December 2010, physical examinations revealed no more than
moderate objective findings, and diagnostic imaging studies failed
to reveal evidence of disease significant enough to preclude all work
R. 18-19 (citing R. 280-309, 390-410). While Dr. Chewing’s treatment notes during the relevant
period do show persistent, moderate to severe muscle spasms and pain (see R. 285, 287, 291, 293,
295, 297, 303-04, 306, 308), the ALJ’s finding that Dr. Chewing’s treatment notes are inconsistent
with both of his opinions is supported by substantial evidence. See R. 280-309, 390-410.
In addition, the ALJ also accurately notes that Claimant testified that he has no problems
with the use of his arms and hands (R. 40), and he can sit in a car while driving for thirty minutes
at a time (R. 53). R. 21. Thus, substantial evidence supports the ALJ’s finding that Dr. Chewning’s
opinion, with respect to Claimant’s elbow impairments and inability to sit more than ten minutes,
are inconsistent with the Claimant’s own testimony. R. 21.
Based on the forgoing, the Court finds that the ALJ demonstrated good cause, supported
by substantial evidence, for giving limited and/or little weight to Dr. Chewning’s opinions.
Accordingly, this argument is rejected.
Claimant argues that the ALJ’s credibility finding is not supported by substantial evidence
because the ALJ failed to articulate explicit reasons for determining that Claimant’s subjective
statements are not credible to the extent they conflict with the ALJ’s RFC. Doc. No. 19 at 14-16.
In the Eleventh Circuit, a three-part “pain standard” applies when a claimant attempts to establish
disability through subjective symptoms. Under this standard, there must be: (1) evidence of an
underlying medical condition and either (2) objective medical evidence that confirms the severity
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of the alleged symptom arising from the condition or (3) evidence that the objectively determined
medical condition is of such severity that it can be reasonably expected to give rise to the alleged
pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986)). “20 C.F.R. § 404.1529 provides that once such an impairment is
established, all evidence about the intensity, persistence, and functionally limiting effects of pain
or other symptoms must be considered in addition to the medical signs and laboratory findings in
deciding the issue of disability.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995); 20 C.F.R.
§ 404.1529.3 Once the pain standard is satisfied, the issue becomes one of credibility.
A claimant’s subjective testimony supported by medical evidence that satisfies the standard
is itself sufficient to support a finding of disability. Foote, 67 F.3d at 1561. “If the ALJ decides
not to credit a claimant’s testimony as to her pain, he must articulate explicit and adequate reasons
for doing so.” Id. at 1561-62. A reviewing court will not disturb a clearly articulated credibility
finding with substantial supporting evidence in the record. Id. at 1562. The lack of a sufficiently
Social Security Ruling 96–7p provides:
“2. When the existence of a medically determinable physical or mental impairment(s) that could reasonably be
expected to produce the symptoms has been established, the intensity, persistence, and functionally limiting effects of
the symptoms must be evaluated to determine the extent to which the symptoms affect the individual’s ability to do
basic work activities. This requires the adjudicator to make a finding about the credibility of the individual’s statements
about the symptom(s) and its functional effects.
3. Because symptoms, such as pain, sometimes suggest a greater severity of impairment than can be shown by
objective medical evidence alone, the adjudicator must carefully consider the individual’s statements about symptoms
with the rest of the relevant evidence in the case record in reaching a conclusion about the credibility of the individual’s
statements if a disability determination or decision that is fully favorable to the individual cannot be made solely on
the basis of objective medical evidence.
4. In determining the credibility of the individual’s statements, the adjudicator must consider the entire case record,
including the objective medical evidence, the individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant evidence in the case record. An individual’s statements about
the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not substantiated by objective medical evidence.” Id.
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explicit credibility finding may give grounds for a remand if credibility is critical to the outcome
of the case. Id.
In the decision, the ALJ provides a thorough summary of Claimant’s testimony. R. 18.4
Then, the ALJ finds:
After careful consideration of the evidence, [the ALJ] finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statement concerning the intensity, persistence and limiting effects
of these symptoms are not credible to the extent they are inconsistent
with the above [RFC].
R. 18. Thus, the ALJ determined that Claimant’s subjective statements were not credible to the
extent they were inconsistent with the ALJ’s RFC. See supra p. 7 (the ALJ’s RFC).
Contrary to Claimant’s argument, the ALJ devotes two pages of the decision describing
the ALJ’s reasons for making that credibility determination. R. 18-20. In short, the ALJ states the
following reasons for the ALJ’s credibility determination: (1) diagnostic imaging and treatment
notes do no reveal significant functional limitations (R. 18-19); (2) Claimant’s course of treatment
has been conservative (R. 19); (3) Claimant’s gap in treatment due to insufficient resources is not
fully credible (R. 19); (4) Claimant’s use of medications for relief of symptoms do not reflect
limitations greater than those indicated in the RFC (R. 19); and (5) records reveal that Claimant
“works outside often,” swims on occasion, and was able to go boating once, which is inconsistent
with Claimant’s allegations of very limited daily activities (R. 19-20). The ALJ provides citations
to the record for each of these reasons and, the Court finds that the reason offered by the ALJ for
finding Claimant’s subjective statements not credible are supported substantial evidence. See R.
18-20.5 Accordingly, this argument is rejected.
Claimant raises no issue as to the accuracy of the ALJ’s summary of Claimant’s testimony. Doc. No. 19.
Claimant testified the last time he went boating was a few months before the hearing. R. 55.
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For the reasons stated above, it is ORDERED that:
The Commissioner’s final decision is AFFIRMED; and
The Clerk is directed to close the case.
DONE AND ORDERED in Orlando, Florida on June 27, 2014.
Counsel of record
Copies by mail to:
The Honorable M. Hart
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Desoto Bldg, Suite 400
8880 Freedom Crossing Trail
Jacksonville, FL 32256-1224
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