Oshiro v. Colvin
Filing
31
ORDER REVERSING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER AND REMANDING THE CASE FOR FURTHER PROCEEDINGS re 29 - Signed by JUDGE HELEN GILLMOR on 1/27/2017. "The Commissioner of Social Security Administration 39;s decision is REVERSED AND REMANDED for further proceeding consistent with this Order." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
YOUNG CHA OSHIRO,
Plaintiff,
vs.
CAROLYN W. COLVIN, Social
Security Administration
Commissioner,
Defendant.
______________________________
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CIVIL NO. 16-00157 HG-KSC
ORDER REVERSING THE DECISION OF THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER AND REMANDING THE CASE FOR FURTHER
PROCEEDINGS
This case involves the appeal of the Social Security
Administration Commissioner’s denial of Disability Insurance
Benefits to Plaintiff Young Cha Oshiro.
On August 9, 2012, Plaintiff filed an application for
Disability Insurance Benefits pursuant to Title II of the
Social Security Act.
Plaintiff claims she has been disabled
since April 29, 2012, due to Systemic Lupus Erythematosus
(“Lupus”).
The Social Security Administration denied her initial
application.
Following an administrative hearing, the
Administrative Law Judge held that Plaintiff is not disabled
1
and found that Plaintiff is able to perform work in the
national economy.
On appeal, Plaintiff argues that the Administrative Law
Judge erred and requests a remand to the agency for further
proceedings.
Plaintiff asserts that the Administrative Law
Judge erred for three reasons.
First, Plaintiff argues the
Administrative Law Judge erred by rejecting the opinions of
her treating physicians.
Second, Plaintiff argues that the
Administrative Law Judge improperly declined to credit the
Plaintiff’s testimony concerning the severity of her medical
condition.
Third, Plaintiff asserts that the Administrative
Law Judge erred by relying on the testimony of the vocational
expert to find that Plaintiff could perform work as a Toll
Collector.
The Court REVERSES the decision of the Social Security
Administration Commissioner and REMANDS the case for further
evaluation.
PROCEDURAL HISTORY
On August 9, 2012, Plaintiff Young Cha Oshiro filed an
application for Disability Insurance Benefits with the Social
Security Administration.
(Administrative Record (“AR”) at
149-52, 162, ECF No. 17).
2
On January 23, 2013, the Social Security Administration
denied Plaintiff’s initial application.
(AR at pp. 88-91).
On August 21, 2013, the Administration denied her request
for reconsideration.
(AR at pp. 95-99).
Following the denial of Plaintiff’s request for
reconsideration, she sought a hearing before an Administrative
Law Judge (“ALJ”).
(AR at pp. 101-07).
On July 14, 2014, an ALJ conducted a hearing on
Plaintiff’s application.
(AR at pp. 26-66).
On September 17, 2014, the ALJ issued a written decision
denying Plaintiff’s application.
(AR at pp. 12-21).
Plaintiff sought review by the Appeals Council for the
Social Security Administration.
The Appeals Council denied
further review of Plaintiff’s application on February 12,
2016, rendering the ALJ’s decision as the final administrative
decision by the Commissioner of Social Security.
(AR at pp.
1-3).
On April 4, 2016, Plaintiff sought judicial review of the
Commissioner of Social Security’s final decision to deny her
application for Disability Benefits in this Court pursuant to
42 U.S.C. § 405(g).
(Complaint for Review of Social Security
Disability Benefits Determinations, ECF No. 1).
On August 4, 2016, the Magistrate Judge issued a briefing
3
schedule.
(ECF No. 20).
On September 30, 2016, Plaintiff filed PLAINTIFF’S
OPENING BRIEF.
(ECF No. 22).
On November 9, 2016, Defendant filed DEFENDANT’S MOTION
FOR A FIRST EXTENSION OF 30 DAYS TO FILE THE ANSWERING BRIEF.
(ECF No. 23).
On November 10, 2016, the Court issued a Minute Order
granting the Defendant’s Motion for an Extension.
(ECF No.
24).
On December 14, 2016, the Defendant filed DEFENDANT’S
ANSWERING BRIEF.
(ECF No. 25).
On December 27, 2016, Plaintiff filed PLAINTIFF’S REPLY
BRIEF.
(ECF No. 26).
On January 17, 2017, the Court held a hearing on
Plaintiff’s appeal of the decision of the Social Security
Administration Commissioner.
BACKGROUND
Plaintiff’s Work History
Plaintiff is a 56 year-old female.
Record (“AR”) at p. 162, ECF No. 17).
(Administrative
Plaintiff worked as a
sewer at CC Fashion Hawaii from 1999 to 2011.
204).
(Id. at p.
Plaintiff also worked for a year as a janitor in 1998.
4
(Id.)
Plaintiff explained that as of 2011, she could no
longer work the four to six hours a day that was necessary for
her employment at CC Fashion Hawaii.
(Id. at pp. 34-35).
Plaintiff testified that she required extensive breaks that
did not allow her to work full-time.
(Id.)
Plaintiff testified that after 2011 she worked
exclusively as a contract seamstress.
(Id. at pp. 35-36).
Plaintiff had been self-employed as a contract seamstress
since July 1987 and she stopped working in April 2012.
at pp. 31, 164).
Plaintiff testified that she performed
sewing work that she received from a factory.
36).
(Id.
(Id. at pp. 35-
Plaintiff stated that she performed the work in her home
and returned it to the factory when completed.
(Id.)
Plaintiff testified that she only worked three to four
hours a day as a seamstress.
(Id.)
Plaintiff explained that
she took frequent breaks throughout the day due to fatigue and
pain caused by Lupus.
(Id. at p. 36).
Plaintiff explained
that she took breaks for 30 minutes to an hour and that her
condition varied from day to day.
(Id. at p. 35).
Plaintiff
testified that there were some days when she could not work at
all due to her condition.
(Id.)
Plaintiff stated that she stopped working in April 2012
because she could no longer perform the work within the
5
deadlines she was given by the factory.
(Id. at pp. 32-36).
Plaintiff explained that on a few occasions she had to return
the sewing work to the factory in an unfinished state because
she was unable to meet the deadlines due to her condition.
(Id. at pp. 35-36).
Plaintiff’s Medical Condition
The record reflects that Plaintiff has been suffering
from Systemic Lupus Erythematosus (“Lupus”) for a number of
years.
Plaintiff has been treated by two physicians, Dr. Paul
Kim, her primary physician, and Dr. Scott Kawamoto, her
rheumatologist.
Plaintiff provided records from her eight visits with Dr.
Kim between September 2011 and January 2014.
47, 290-91, 300-01, ECF No. 17).
(AR at pp. 245-
The treating records from
Dr. Kim are difficult to read but he provided a summary of
Plaintiff’s condition in June 2014.
Dr. Kim stated that
Plaintiff suffers from Lupus and that it causes her to have
pain in her extremities and joints.
(Id. at pp. 400-03).
Dr.
Kim indicated that Plaintiff suffers from fatigue and requires
many breaks throughout the workday.
(Id. at p. 401).
Dr. Kim
stated that Plaintiff would be absent from work more than
three days a month due to Lupus.
6
(Id. at p. 402).
Plaintiff also provided records from her rheumatologist,
Dr. Scott Kawamoto.
There are numerous reports of the visits
she made to Dr. Kawamoto for treatment of her Lupus condition.
Between June 2011 and December 2011, Plaintiff was
treated by Dr. Kawamoto, on three occasions for left ankle
pain, swelling, and fatigue caused by Lupus.
220, 223).
(Id. at pp. 217,
Plaintiff was prescribed Hydroxychloroquine
Sulfate and Celebrex to treat her inflammation and joint pain
symptoms.
(Id.)
Between April 2012 and January 2013, Plaintiff was
treated by Dr. Kawamoto three times for bilateral knee pain,
pain in her back, neck, wrists, right shoulder, and left
ankle, mouth sores, and fatigue due to non-restorative sleep.
(Id. at pp. 226, 230, 275).
The Social Security Administration’s Review of Plaintiff’s
August 2012 Application For Disability Benefits
Plaintiff’s August 9, 2012 application for Disability
Insurance Benefits was denied on January 23, 2013.
88-91, ECF No. 17).
(AR at pp.
Following the initial denial, Plaintiff
moved for reconsideration.
While her Motion to Reconsider was pending, on March 3,
2013, Plaintiff went to the emergency room because she was
experiencing abdominal pain.
(Id. at pp. 319-327).
7
She was
provided with medication to treat her pain and discharged the
same day.
(Id.)
Plaintiff pursued follow-up treatment with her primary
care physician, Dr. Kim.
later on March 6, 2013.
Her symptoms returned three days
Plaintiff went to the emergency room
with stomach pain and dizziness.
(Id. at pp. 328-350).
She
was admitted to the hospital and a scan revealed that
Plaintiff had a benign tumor that caused her vertigo,
dizziness, and nausea.
(Id. at p. 329).
Plaintiff was
prescribed medicine to treat her nausea and dizziness and
referred to her treating physicians for follow-up treatment.
(Id. at pp. 328-29).
Plaintiff continued to make frequent visits to her
treating physicians following her March 2013 hospitalization.
(Id. at pp. 290-91, 300-01).
Plaintiff’s medical records
reflect six examinations by Dr. Kawamoto from April to October
(Id. at pp. 277, 361, 365, 368).
2013.
The records indicate
that Plaintiff continued to experience pain, aching, and
fatigue.
(Id.)
On August 21, 2013, the Social Security Administration
denied Plaintiff’s motion for reconsideration.
95-99).
(Id. at pp.
Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”).
8
(Id. at pp. 101-07).
In June 2014, both Plaintiff’s treating physicians Dr.
Kawamoto and Dr. Kim provided Medical Source Statements to the
Social Security Administration.
(Id. at pp. 395-403).
The
Medical Source Statements provide information to the agency
about the Plaintiff’s medical condition, physical limitations,
and her ability to work.
(Id.)
Both of Plaintiff’s treating physicians agree that
Plaintiff suffers from Lupus.
Plaintiff’s treating physicians
share the opinion that Plaintiff cannot walk or stand for more
than two hours in an eight-hour work day.
400).
(Id. at pp. 395,
Plaintiff’s physicians state she cannot walk or stand
for more than 30 minutes at a time and cannot sit for more
than 30 minutes at a time.
(Id.)
Both Dr. Kawamoto and Dr. Kim agree that Plaintiff’s
medical condition prevents her from working full-time.
Both
physicians stated that Plaintiff requires more than regular
breaks during an 8-hour workday.
(Id. at pp. 396, 401).
Both
of Plaintiff’s treating physicians agree that Plaintiff would
miss more than three days of work per month because of joint
pain, swelling, and severe fatigue caused by Lupus.
(Id. at
pp. 397, 402).
On July 14, 2014, a hearing on Plaintiff’s application
for Disability Benefits was held before an ALJ.
9
(Id. at pp.
26-66).
The ALJ denied Plaintiff’s application for Disability
Insurance Benefits, finding that Plaintiff had not met the
requirements set forth in 42 U.S.C. § 423.
(AR at pp. 12-21,
ECF No. 17).
42 U.S.C. § 423 establishes the statutory eligibility
requirements which an individual must satisfy to receive a
disability insurance benefit pursuant to the Social Security
Act.
42 U.S.C. § 423(a)(1).
An individual is eligible to
receive disability insurance benefits if the individual:
(A)
is insured for disability insurance benefits as
determined by 42 U.S.C. § 423(c)(1);
(B)
has not attained retirement age;
(C)
has filed an application for disability insurance
benefits; and,
(D)
is under a disability as defined in 42 U.S.C. §
423(d)(1)(A).
42 U.S.C. § 423(a)(1)(A)-(D).
The ALJ evaluated the four requirements of 42 U.S.C. §
423(a)(1).
First, the ALJ found Plaintiff was insured for disability
insurance benefits pursuant to 42 U.S.C. § 423(c)(1).
The ALJ
determined that Plaintiff’s earnings record showed that she
had made disability insurance coverage payments.
Based on
Plaintiff’s work history, the ALJ found that Plaintiff had
10
acquired quarters of coverage that will last until December
31, 2016.
(AR at p. 14, ECF No. 17).
Next, the ALJ found that Plaintiff fulfilled sections (B)
and (C) of Section 423 because she had not reached retirement
age at the time of her application and had properly filed an
application for disability insurance benefits.
Finally, the ALJ sought to determine if Plaintiff
suffered from a disability pursuant to 42 U.S.C. § 423(d).
42 U.S.C. § 423(d)(1)(A) provides, as follows:
The term “disability” means— inability to engage in
any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which
has lasted or can be expected to last for a
continuous period of not less than 12 months.
Plaintiff claimed that she was disabled for a continuous
period following April 29, 2012, due to Lupus.
(AR at p. 187,
ECF No. 17).
The Administrative Law Judge found that Plaintiff failed
to establish that she had a disability that lasted or was
expected to last at least twelve months following her alleged
onset date of disability on April 29, 2012.
(Id. at p. 15).
The ALJ agreed with Plaintiff that she was not capable of
performing her past relevant work as a seamstress.
19).
(Id. at p.
The Administrative Law Judge found, however, that there
was work that existed in significant numbers in the economy
11
that Plaintiff could perform.
(Id. at pp. 19-21).
The
Administrative Law Judge relied on the testimony of a
vocational expert to find that someone with Plaintiff’s
limitations could perform work as a Toll Collector.
(Id. at
pp. 19-20).
Plaintiff sought review of the Administrative Law
Judge’s decision with the Appeals Council.
The Appeals
Council declined Plaintiff's request for review and rendered
the ALJ’s decision as the final administrative decision by the
Commissioner of Social Security.
(Id. at pp. 1-3).
STANDARD OF REVIEW
A claimant is disabled under the Social Security Act if
he or she is unable to “engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which ... has lasted or can be expected to
last for a continuous period of not less than 12 months.”
42
U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
A decision by the Commissioner of Social Security must be
affirmed by the District Court if it is based on proper legal
standards and the findings are supported by substantial
evidence on the record as a whole.
12
See 42 U.S.C. § 405(g);
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir.
1993).
ANALYSIS
I.
Plaintiff’s Background and Work History
The Administrative Record reflects that Plaintiff was
born in November 1960.
162, ECF No. 17).
(Administrative Record (“AR”) at p.
Plaintiff has a sixth grade education and
she did not complete high school.
(Id. at p. 174).
In 1996
she completed a six-month training program in sewing.
(Id.)
In 2013 she completed an English as a Second Language program.
(Id. at p. 200).
Plaintiff performed janitorial work at Peal Harbor from
1998 to 1999.
(Id. at p. 204).
Plaintiff worked as a sewer
at CC Fashion Hawaii from 1999 to 2011.
(Id.)
Between 1987
and April 2012, Plaintiff performed contract work as a
seamstress.
II.
Plaintiff’s Diagnosis and Treatment for Systemic Lupus
Erythematosus
13
The record indicates that Plaintiff stopped working in
April 2012.
She reported she was unable to work due to pain
and fatigue caused by Lupus.
Plaintiff testified that she
stopped working because she could no longer perform sewing
work in a timely manner.
(AR at pp. 32-36, ECF No. 17).
The record establishes that Plaintiff was diagnosed with
Systemic Lupus Erythematosus (“Lupus”)1 a number of years
before she stopped working in April 2012.
Plaintiff submitted her medical records starting from
June 2011.
(Id. at p. 217).
Plaintiff’s medical records
reflect regular evaluations by two physicians, Dr. Paul Kim, a
primary physician, and Dr. Scott Kawamoto, a rheumatologist.
The records reflect that both doctors diagnosed Plaintiff
with Lupus, examined Plaintiff for several years, and treated
various symptoms of Lupus, including joint pain, swelling,
mouth sores, and fatigue.
(Id. at pp. 217, 220, 223, 226,
230, 246-47, 275-, 277, 290-91, 300-01).
A.
Objective Medical Evidence
1.
Examinations by Dr. Scott Kawamoto from June
2011 to June 2014
1
Lupus is an inflammatory connective tissue disease with
variable features. It frequently includes fever, weakness,
fatigue, joint pain, arthritis, and skin lesions. Stedman’s
Medical Dictionary 1037 (27th ed. 2000).
14
Plaintiff provided extensive medical records from her
examinations by rhematologist, Dr. Scott Kawamoto.
Over a
three-year period from June 2011 to June 2014, Plaintiff was
examined by Dr. Kawamoto thirteen times.
(AR at pp. 217-379,
ECF No. 17).
The records state that Plaintiff suffers from Lupus.
(Id. at p. 217).
Dr. Kawamoto treated Plaintiff for a number
of symptoms related to Lupus including pain, swelling, and
aching in Plaintiff’s back, neck, hands, wrist, shoulder,
ankle, hip, and thumb.
357, 361, 365).
(Id. at pp. 219, 228, 230, 264, 275,
Dr. Kawamoto’s treating records indicate that
Plaintiff continuously suffers from fatigue as a result of
nonrestorative sleep.
(Id. at pp. 275, 357, 365).
Dr.
Kawamoto also found that Plaintiff suffers from
osteoarthritis.
(Id. at pp. 228, 276).
Dr. Kawamoto prescribed Plaintiff a number of medications
to treat her symptoms.
Plaintiff takes Hydroxychloroquine
every day to treat inflammation and joint pain caused by
Lupus.
(Id. at p. 219).
Dr. Kawamoto prescribed other medications for Plaintiff
to treat various Lupus flare-ups.
In September 2011,
Plaintiff was prescribed Celebrex to treat inflammation.
at p. 220).
(Id.
In August 2012, Plaintiff was given Tylenol to
15
treat knee pain.
(Id. at p. 233).
In January 2013, Dr. Kawamoto increased Plaintiff’s
medications.
joint pain.
Plaintiff was prescribed Meloxicam to treat
(Id. at p. 276).
Dr. Kawamoto found that
Plaintiff’s fatigue “remains problematic” and stated that
medication only offers partial, temporary improvement.
(Id.)
In September 2013, Dr. Kawamoto evaluated Plaintiff when
she had an increase in Lupus symptoms.
(Id. at p. 367).
Plaintiff complained of increased pain in her ankles, wrists,
knees, and shoulders.
(Id. at p. 365).
Dr. Kawamoto found
that Plaintiff suffered from a Lupus flare.
(Id. at p. 367).
Dr. Kawamoto altered Plaintiff’s medications.
He discontinued
Plaintiff’s prescription for Meloxicam and instead prescribed
Etodolac for pain and inflammation.
(Id.)
prescribed Prednisone to treat inflammation.
Plaintiff was also
(Id.)
Plaintiff was reluctant to take additional medications.
The record reflects that Plaintiff declined trials of
medications to assist her in sleeping to be taken in addition
to the medications directed at treating Lupus.
(Id. at p.
233).
2.
Examinations by Dr. Paul Kim from April 2011 to
January 2014
Plaintiff provided records from eight visits with her
16
primary care physician, Dr. Paul Kim, between September 2011
and January 2014.
17).
(AR at pp. 245-47, 290-91, 300-01, ECF No.
The treating records from Dr. Kim state that Plaintiff
suffers from Lupus that causes her to have pain in her
extremities and joints.
(Id. at p. 247).
On March 3, 2013, Plaintiff went to the emergency room
because she experienced abdominal pain.
(Id. at pp. 319-327).
Plaintiff’s pain improved with medication at the emergency
room.
(Id. at p. 321).
Plaintiff was discharged and referred
to Dr. Kim for follow-up treatment.
(Id. at p. 324).
The following day, March 4, 2013, Dr. Kim examined
Plaintiff and provided her with medication to treat her
abdominal pain and nausea.
(Id. at p. 301).
Two days later,
on March 6, 2013, Plaintiff’s pain increased and she suffered
from dizziness and vertigo.
(Id. at pp. 328-350).
Plaintiff
again went to the emergency room and was admitted to the
hospital.
(Id. at p. 328).
A scan revealed Plaintiff had a
calcified benign brain tumor that might have been the cause of
her dizziness, vertigo, and nausea.
(Id.)
Plaintiff was treated with medication to alleviate her
abdominal pain and dizziness.
(Id. at p. 329).
Plaintiff was
discharged and continued follow-up appointments with Dr. Kim.
(Id. at p. 291).
17
Plaintiff continued to seek treatment from Dr. Kim in
2013 and 2014.
(Id. at pp. 290-91).
The medical records from
Dr. Kim indicate that Plaintiff continued to suffer from
Lupus.
(Id.)
3.
Dr. Kawamoto and Dr. Kim’s Medical Source
Statements Made in June 2014
In June 2014, Plaintiff’s treating physicians completed
written assessments of Plaintiff’s medical condition and her
ability to work.
(AR at pp. 395-403, ECF No. 17).
The
documents were entitled “Medical Source Statements.”
a.
(Id.)
Dr. Kawamoto, Treating Rheumatologist
In June 2014, Dr. Kawamoto stated that Plaintiff suffers
from joint pain and stiffness in multiple joints.
395).
(Id. at p.
Dr. Kawamoto diagnosed Plaintiff as having both Lupus
and osteoarthritis.
(Id.)
Dr. Kawamoto found that Plaintiff
is limited in her ability to work due to her conditions.
Dr.
Kawamoto determined that Plaintiff is able to sit for a
maximum of 30 minutes at a time, that she needs to alternate
positions by walking about, and that she is able to stand or
walk for a maximum of 30 minutes at a time.
(Id.)
Dr. Kawamoto found that Plaintiff’s fatigue impacts her
ability to work full-time.
He indicated that Plaintiff is
18
able stand or walk for a total of two hours in an eight-hour
workday.
(Id. at p. 396).
Dr. Kawamoto found that Plaintiff’s complaints about
fatigue were consistent with her Lupus diagnosis, that she has
good days and bad days, and that there are a number of days a
month that she is unable to attend work due to her Lupus
condition.
(Id. at pp. 396-97).
Dr. Kawamoto stated that
Plaintiff is required to be absent from work more than 3 days
per month due to her condition.
Dr. Kawamoto explained that
Plaintiff’s medical condition causes her “severe fatigue,
joint pain/stiffness/ swelling, muscle pain.”
(Id. at p.
397).
Dr. Kawamoto also stated that Plaintiff needs significant
breaks to relieve pain and fatigue caused by Lupus.
p. 396).
(Id. at
He found that in addition to a morning break, a
lunch period, and an afternoon break, Plaintiff requires
additional rest periods.
(Id.)
Dr. Kawamoto stated that as of June 2014, Plaintiff was
prescribed Hydroxycholoroquine Sulfate, Prednisone, and
Etodolac to treat her Lupus condition.
b.
(Id. at p. 398).
Dr. Kim, Treating Primary Care Physician
Dr. Kim’s assessment of Plaintiff’s physical limitations
19
caused by Lupus is nearly identical to Dr. Kawamoto’s
assessment.
Dr. Kim stated that Plaintiff’s medical condition
prevents her from working full-time and forces her to be
absent more than three days of work per month.
402).
(Id. at p.
Dr. Kim agreed with Dr. Kawamoto that Plaintiff can
only stand or walk for a maximum of two hours during an eighthour workday.
(Id. at p. 401).
Dr. Kim stated that Plaintiff has fatigue, pain in the
extremities and joints caused by Lupus, and osteoarthritis.
(Id. at pp. 400-403).
Dr. Kim agreed that Plaintiff needs
more than three breaks per day, and specifically underlined a
finding that “more rest is needed.”
II.
(Id. at p. 401).
Plaintiff’s Daily Activities Following April 2012
Plaintiff testified that she takes Hydroxychloroquine
Sulfate and Lyrica everyday and Prednisone two to three times
a week as needed to treat Lupus symptoms.
No. 17).
day.
(AR at p. 39, ECF
Plaintiff testified she also takes ginseng every
(Id.)
medications.
Plaintiff stated she does not take any sleep
(Id. at p. 40).
Plaintiff described her daily activities as limited to
brushing her teeth, eating, lying down, and some cleaning and
20
cooking.
(Id. at pp. 40-41).
Plaintiff testified that she
does not vacuum and only cleans her room and her bedroom, but
that her children do their own laundry and do the dishes.
(Id. at p. 41).
She stated that she sometimes helps with
folding and dishes in the summertime.
(Id.).
Plaintiff
stated that she does not cook everyday and that the family
eats take out three times per week.
(Id.)
Plaintiff explained that she does not go out to socialize
often.
(Id. at pp. 44-45).
Plaintiff testified that she is
able to drive and does some grocery shopping with the
assistance of her family members.
(Id. at p. 42).
Plaintiff
testified that when shopping she only carries small things
because carrying heavy items causes pain in her forearms and
wrists.
(Id. at p. 42).
Plaintiff stated that walking and
standing, and even sitting, for extended periods of time
causes her pain.
(Id. at pp. 42-44).
Plaintiff testified that she gets pain when she sews
because she is using both legs to push the electric pedal and
it hurts.
Her condition requires her to get up and walk
around before returning to work.
(Id. at p. 44).
Plaintiff
stated that she sometimes does small sewing tasks such as
hemming a pair of pants, but she does not regularly sew.
at p. 45).
(Id.
She testified that she has trouble gripping and
21
using a scissors when sewing.
III.
(Id. at p. 48).
Applicable Law
The Social Security Administration has implemented
regulations establishing when a person is disabled so as to be
entitled to benefits under the Social Security Act, 20 C.F.R.
§ 404.1520; 42 U.S.C. § 423.
The regulations establish a
five-step sequential evaluation process to determine if a
claimant is disabled.
The Commissioner of the Social Security
Administration reviews a disability benefits claim by
evaluating the following:
(1)
Has the claimant been engaged in substantial
gainful activity? If so, the claimant is not
disabled. If not, proceed to step two.
(2)
Has the claimant’s alleged impairment been
sufficiently severe to limit his ability to
work? If not, the claimant is not disabled.
so, proceed to step three.
If
(3)
Does the claimant’s impairment, or combination
of impairments, meet or equal an impairment
listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1? If so, the claimant is disabled.
If not, proceed to step four.
(4)
Does the claimant possess the residual
functional capacity to perform his past relevant
work? If so, the claimant is not disabled. If
not, proceed to step five.
(5)
Does the claimant’s residual functional
capacity, when considered with the claimant’s
age, education, and work experience, allow him
22
to adjust to other work that exists in
significant numbers in the national economy? If
so, the claimant is not disabled. If not, the
claimant is disabled.
Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052
(9th Cir. 2006) (citing 20 C.F.R. § 404.1520).
The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step
five.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.
2001).
IV.
The Administrative Law Judge Reviewed Plaintiff’s
Application By Using The Five-Step Sequential Evaluation
At Plaintiff’s July 14, 2014 administrative hearing, the
Administrative Law Judge (“ALJ”) for the Social Security
Administration reviewed Plaintiff’s claim by engaging in the
five-step sequential evaluation.
The Parties agree there were no errors in the first three
steps of the administrative review process.
The Parties disagree as to steps four and five in the
administrative review process.
At step four, the ALJ reviewed the record and made a
finding as to Plaintiff’s residual functional capacity.
The
ALJ found that Plaintiff could not perform her past work but
she could perform light work with some limitations.
23
(AR at p.
15, ECF No. 17).
At step five, the ALJ inquired with the vocational expert
to evaluate if there were other jobs that Plaintiff could
perform.
The ALJ found that someone with Plaintiff’s
limitations could perform work as a Toll Collector.
(Id.)
Plaintiff’s appeal challenges the ALJ’s findings on three
main issues.
First, Plaintiff argues that the ALJ erred by
declining to credit the opinions of her treating physicians in
evaluating her residual functional capacity.
Second,
Plaintiff asserts that the ALJ erred in finding her not
credible.
Third, Plaintiff argues that the ALJ erred by
relying on the testimony of the vocational expert to find that
Plaintiff could perform work as a Toll Collector.
V.
Remand Is Appropriate To Enable The ALJ To Property
Consider The Treating Physicians’ Opinions Regarding
Plaintiff’s Limitations
Plaintiff challenges the ALJ’s decision with respect to
the residual functional capacity assessment at step four in
the administrative process.
Plaintiff argues that the ALJ improperly rejected the
opinions of her two treating physicians.
Plaintiff also
argues that the ALJ erred in finding the Plaintiff not
credible.
24
A.
The ALJ Erred By Rejecting The Opinions Of
Plaintiff’s Treating Physicians
A treating physician’s opinion is entitled to the
greatest weight because the treating physician is hired to
examine and treat the patient over an extended period of time
and has the best opportunity to assess the claimant.
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
Treating physicians are “most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s).”
20 C.F.R. § 404.1527(c).
An ALJ must state clear and convincing reasons that are
supported by substantial evidence in order to reject the
uncontradicted opinion of the treating physician.
Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Plaintiff’s treating physicians Dr. Scott Kawamoto and
Dr. Paul Kim examined Plaintiff on more than 21 different
occasions between June 2011 and June 2014.
379, ECF No. 17).
(AR at pp. 217-
Both physicians have diagnosed Plaintiff
with Lupus and other ailments.
The medical records reflect that Plaintiff suffers from
osteoarthritis in addition to Lupus.
The ALJ recognized that
Plaintiff was diagnosed with osteoarthritis and found that
some of the objective medical evidence supports such a
25
diagnosis.
(Id. at p. 14).
The ALJ found that osteoarthritis
did not last longer than 12 months and did not cause
significant limitations on Plaintiff’s ability to work.
(Id.)
Plaintiff does not object to such a finding on appeal.
Plaintiff’s severe impairment is Lupus.
She has suffered
from Lupus for more than six years and she continues to suffer
from Lupus.
Plaintiff saw her treating physicians frequently
to treat Lupus and symptoms related to Lupus.
The physicians
have treated Plaintiff for her varying symptoms including
joint and muscle pain, aching, and fatigue.
daily Hyrdoxychloroquine medication.
Plaintiff takes
She has also taken
Celebrex, Meloxicam, Etodolac, Tylenol and Prednisone to treat
her joint pain and inflammation.
The nature of the Plaintiff’s diagnosis is relevant in
this case.
The Ninth Circuit Court of Appeals has recognized
the difficulty of diagnosing Lupus, which has been known to
require continuous reevaluation by doctors when new symptoms
develop.
Poppa v. Comm’s of Soc. Sec., 1999 WL 1048664, *3
(9th Cir. 1999).
In cases involving Lupus diagnoses, “it is
particularly critical that the ALJ consider a treating
physician’s opinion and Plaintiff’s own SLE [Systemic Lupus
Erythematosus]-induced pain and fatigue complaints.”
Garcia
v. Colvin, 2015 WL 7573653, *8 (C.D. Cal. Nov. 25, 2015)
26
(internal citation and quotation marks omitted).
In June 2014, both of Plaintiff’s treating physicians
completed Medical Source Statements for the Social Security
Administration.
The Medical Source Statements are provided to
explain Plaintiff’s physical limitations caused by Lupus.
at pp. 395-403, ECF No. 17).
(AR
Both Dr. Kawamoto and Dr. Kim
agree that the following three limitations impair Plaintiff’s
ability to work due to Lupus and Lupus symptoms:
(1)
Plaintiff is unable to stand or walk more than two
hours in an eight-hour workday;
(2)
Plaintiff requires more than three breaks during an
eight-hour work day; and,
(3)
Plaintiff’s condition causes her to be absent more
than three workdays a month.
(Id.)
The ALJ did not credit the three limitations identified
by Plaintiff’s treating physicians when evaluating Plaintiff’s
residual functional capacity.
The ALJ rejected the treating
physicians’ opinions and instead found that Plaintiff is able
to stand or walk for six hours in an eight-hour workday.
at p. 15).
(Id.
The ALJ’s finding is in contrast to the two hours
maximum that Plaintiff’s treating physicians stated she could
stand or walk.
The ALJ also did not credit the rest breaks
and days off work limitations identified by the treating
physicians in her order.
(Id.)
27
According to the ALJ, she rejected the opinions of Dr.
Kawamoto and Dr. Kim for three reasons.
First, she stated
that she did not agree with the treating physicians’
assessments because of the sedimentation rate in the clinical
tests.
(Id. at p. 18).
Second, the ALJ stated that she
rejected the treating physicians’ assessments because of “the
efficacy of the medication [Plaintiff] is taking.”
(Id.)
Third, the ALJ instead relied, partially, on the opinion of a
non-treating State agency physician.
1.
(Id.)
The ALJ’s Individual Assessment Of Plaintiff’s
Sedimentation Rate Is Not Sufficient To Reject
The Opinions Of Plaintiffs’ Treating Physicians
According to the medical websites offered by Plaintiff, a
sedimentation rate test is a blood test that measures how
quickly red blood cells settle in a test tube in one hour.
(Supplement at Ex. 1, ECF No. 28-1).
progress in inflammatory diseases.
The test may reveal
(Id.)
Sedimentation rates
increase with more inflammation because red blood cells have
higher amounts of protein and fall more rapidly when there is
inflammation in the body.
(Id.)
Plaintiff’s medical records reflect that her
sedimentation rate was regularly tested by her treating
physicians between June 2011 and June 2014.
28
Plaintiff’s
sedimentation rate results ranged from a 3 to 5.
(AR at pp.
219, 223, 225, 228, 264, 359, 363, 369, ECF No. 17).
The ALJ relied on the sedimentation rate test results
contained in Plaintiff’s medical records to reject the
opinions of Plaintiff’s treating physicians.
(Id. at p. 17).
Plaintiff challenges the ALJ’s reliance on the results of her
sedimentation rate tests.
(Opening Brief at pp. 17-19, ECF
No. 22).
Plaintiff argues that sedimentation rate tests alone are
not used by physicians to diagnose or assess Lupus.
Plaintiff
asserts that “established medical literature explains that
[erythrocyte sedimentation rates] are not useful when
evaluating the severity of Lupus symptoms.”
ECF No. 26).
(Reply at p. 3,
Plaintiff asserts that the ALJ erred in relying
on the sedimentation rate data because the test is limited to
evaluating inflammation and does not assess any other Lupus
symptoms.
Plaintiff cited to documents from the Mayo Clinic and
John’s Hopkins Lupus Center.
(Reply Brief at p. 3, ECF No.
26; Supplement, ECF No. 28).2
The Mayo Clinic states that
2
Plaintiff cited to the following websites:
(1) Mayo Clinic Online,
http://www.mayoclinic.org/tests-procedures/sed-rate/
home/ovc-20207006 (last visited, January 17, 2017).
29
“diagnosing lupus is difficult because signs and symptoms vary
considerably from person to person.”
ECF No. 28-2).
(Supplement at Ex. 2,
The Mayo Clinic website provides that
sedimentation rate tests are not necessarily helpful in
evaluating Lupus because an elevated rate can be indicative of
any inflammatory condition, cancer, or an infection, and
sedimentation rate tests do not test for any one specific
disease.
(Id.)
The John’s Hopkins Lupus Center states that the
sedimentation rate test “does not tell your doctor exactly
where the inflammation is occurring in your body and is thus
not a very strong indicator of lupus activity.”
(Supplement
at Ex. 1, ECF No. 28-1).
In her written decision, the ALJ found that Plaintiff’s
sedimentation rate data was inconsistent with the treating
physicians’ assessment of Plaintiff and the Plaintiff’s own
testimony about the severity of her symptoms.
ECF No. 17).
(AR at p. 17,
The ALJ stated that she believed Plaintiff’s
sedimentation rate should have been higher and should have
increased when she experienced more severe Lupus symptoms.
(2)
John’s Hopkins Lupus Center,
http://www.hopkinslupus.org/lupus-tests/clinicaltests/erythrocyte-sedimentation-rate-esr/ (last
visited, January 17, 2017).
30
(Id.)
Plaintiff argues that the ALJ improperly substituted her
own lay opinion as to the significance of the sedimentation
rate data instead of relying on the treating physicians’
expert opinions.
Both of Plaintiff’s treating physicians were aware of
Plaintiff’s sedimentation rate test results over the three
year examination period from June 2011 to June 2014.
Neither
of the treating physicians found that Plaintiff’s
sedimentation rate results were inconsistent with Plaintiff’s
complaints, physical symptoms, or Lupus diagnosis.
The ALJ made her own assessments of the raw medical data
and found the results of Plaintiff’s sedimentation rate tests
significant, but she provided no explanation as to the basis
for her conclusions.
The ALJ’s decision never explained the
nature or purpose of a sedimentation rate test.
The ALJ did
not provide any information in her decision to explain what a
sedimentation rate is, what it tests, how it is viewed, and
what it means in the context of other rates or scores.
Courts in the Ninth Circuit Court of Appeals jurisdiction
have repeatedly found that an ALJ may not reject the opinion
of a treating physician based on his or her own interpretation
of raw medical data.
Tackett v. Apfel, 180 F.3d 1094, 1102-03
31
(9th Cir. 1999) (the ALJ may not substitute his own
interpretation of the medical evidence for the opinion of
medical professionals); see Orn v. Astrue, 495 F.3d 625, 632
(9th Cir. 2007); Banks v. Barnhart, 434 F.Supp.2d 800, 805
(C.D. Cal. 2006); Ceja v. Colvin, 2013 WL 5492046, *9 (C.D.
Cal. Sept. 30, 2013).
The ALJ’s rejection of the opinions of Plaintiff’s
treating physicians based on the sedimentation rate is not
supported by clear and convincing evidence.
2.
The ALJ’s Individual Assessment Of The Efficacy
Of Plaintiff’s Medications Is Not Sufficient To
Reject The Opinions Of Plaintiffs’ Treating
Physicians
The ALJ also evaluated Plaintiff’s medical records as to
the efficacy of her medications.
(AR at p. 17, ECF No. 17).
The ALJ stated:
The claimant’s treatment records also indicate the
treatment helps minimize the symptoms of her
impairment. As noted above, medications, including
over-the-counter Tylenol, seem to help with her pain
and swelling. There is no indication from the
record that she is receiving any more significant
pain medication than this, or other treatment
modalities designed to ameliorate her pain.
(Id.)
The record conflicts with the ALJ’s assessment.
The
record demonstrates that Plaintiff has taken a variety of
32
different pain medications between June 2011 through June 2014
that are stronger than over-the-counter Tylenol.
Plaintiff
was prescribed Hydrochloroquine Sulfate, Meloxicam,
Prednisone, and Etodolac for joint pain and aching at various
points due to Lupus flares.
(Id. at pp. 365-66).
During
Plaintiff’s hospitalization in March 2013, Plaintiff was
provided with Morphine and Lidocaine to treat pain.
(Id. at
p. 321).
The ALJ’s assessment as to the efficacy of the
Plaintiff’s medications is not supported by clear and
convincing evidence for rejecting Plaintiff’s treating
physicians’ opinions.
Smith v. Colvin, 2016 WL 4059627, *3-*4
(C.D. Cal. July 27, 2016); Ceja, 2013 WL 5492046, at *9.
3.
The ALJ’s Reliance On Non-Treating Physician
Evaluation Is Not Sufficient To Reject The
Treating Physicians’ Opinions
The ALJ also found that the opinion of the State agency
reviewing physician, Dr. Alan Coleman, conflicted with the
opinions of Dr. Kim and Dr. Kawamoto.
17).
(AR at p. 18, ECF No.
Dr. Coleman determined that Plaintiff’s medical records
demonstrated that she could conduct light work with postural
restrictions.
(AR at p. 84, ECF No. 17).
In some instances, a nonexamining physician may review
33
the claimant’s medical records to assist the ALJ in his or her
assessment of the claimant’s residual functional capacity.
An
ALJ may not rely on the opinion of a nonexamining physician
alone to reject the opinion of the treating physician as to
the severity of the claimant’s impairments.
Lester v. Chater,
81 F.3d 821, 830-31 (9th Cir. 1995).
Dr. Coleman’s opinion was not based on his own clinical
findings but on a review of Plaintiff’s treatment records from
other physicians.
The ALJ was required to provide specific
and legitimate reasons for discounting the treating
physicians’ opinions in favor of Dr. Coleman’s opinion.
Morgan v. Comm’r, 169 F.3d 595, 600 (9th Cir. 1999).
The ALJ did not provide specific and legitimate reasons
for supporting Dr. Coleman’s opinion over that of Plaintiff’s
treating physicians Dr. Kim and Dr. Kawamoto.
Rohrbacher v.
Colvin, 2015 WL 1006678, *5-*6 (C.D. Cal. March 5, 2015).
Courts in the Ninth Circuit Court of Appeals’ jurisdiction
have found that it may be error for the ALJ to rely on a nontreating physician’s opinion when a claimant is diagnosed with
Lupus.
Johnson v. Astrue, 2008 WL 5103230, *4 (C.D. Cal. Dec.
2, 2008).
Although Lupus symptoms vary from day-to-day and
may go into remission, the treating physicians are in the best
possible position to provide information as to the claimant’s
34
physical limitations and ability to work.
Id.
Here, the ALJ’s reliance on the opinion of Dr. Coleman is
misplaced.
The ALJ herself found that some determinations of
Dr. Coleman were inconsistent with the record as a whole.
The
ALJ discredited part of Dr. Coleman’s evaluation, finding
Plaintiff was “more impaired than this due to her fatigue.”
(AR at p. 18, ECF No. 17).
The ALJ’s rejection of the
opinions of Plaintiff’s treating physicians is not supported
by the record.
B.
The ALJ Erred By Failing To Provide Clear and
Convincing Reasons To Reject The Plaintiff’s
Testimony As To The Severity Of Her Symptoms
An ALJ may discredit the claimant’s testimony about the
severity of her symptoms by offering specific, clear and
convincing reasons for doing so.
Tommasetti v. Astrue, 533
F.3d 1035, 1039 (9th Cir. 2008).
The ALJ may consider many factors in weighing a
claimant’s credibility, including evaluating inconsistent
statements concerning the claimant’s symptoms against evidence
of the claimant’s participation in daily activities.
Id. at
1039.
The ALJ’s credibility findings must be sufficiently
specific to permit the court to conclude that the ALJ did not
35
arbitrarily discredit the claimant’s testimony.
Thomas v.
Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
In this case, the ALJ found that “the claimant’s
medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence
and limiting effects of those symptoms are not entirely
credible for the reasons explained in this decision.”
(AR at
p. 17, ECF No. 17).
1.
Sedimentation Rate Test
One basis that the ALJ provided for discrediting the
Plaintiff’s testimony was the sedimentation rate in the
clinical findings.
(Id.)
The weight given by the ALJ to the sedimentation rate
test is not established by information in the opinion.
The
Plaintiff has raised questions as to the appropriateness of
relying on the sedimentation rate test through information
provided by the Mayo Clinic and John’s Hopkins Lupus Center.
(Reply Brief at p. 3, ECF No. 26; Supplement, ECF No. 28).
The ALJ’s own interpretation of the medical data does not
provide clear and convincing evidence for discrediting
Plaintiff’s testimony as to the severity of her symptoms.
36
Tackett, 180 F.3d at 1102-03.
2.
Daily Activities
The ALJ also found the Plaintiff not credible based on
her testimony as to her participation in daily activities.
(AR at p. 18, ECF No. 17).
Plaintiff testified to very
limited participation in daily activities and explained that
fatigue and pain interfered with her minimal cooking, sewing,
and carrying groceries.
(Id. at pp. 39-45).
A claimant’s ability to complete household activities
does not preclude a finding of disability.
Vertigan v.
Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).
The Ninth
Circuit Court of Appeals has stated that it “has repeatedly
asserted that the mere fact that a plaintiff has carried on
certain daily activities, such as grocery shopping, driving a
car, or limited walking for exercise, does not in any way
detract from her credibility as to her overall disability.”
Id.
A claimant does not need to be “utterly incapacitated” in
order for the ALJ to find the claimant disabled.
Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
The Court here does not find Plaintiff’s testimony about
her engagement in limited daily activities to be inconsistent
with her testimony about the severity of her symptoms.
37
Webber
v. Astrue, 305 Fed. Appx. 311, 313 (9th Cir. 2008); Reinertson
v. Barnhart, 127 Fed. Appx. 285, 288 (9th Cir. 2005).
The
ALJ’s adverse credibility determination is not supported by
the record.
C.
Orn, 495 F.3d at 639.
The ALJ Erred By Finding That Plaintiff Can Perform
Work as a Toll Collector
The ALJ relied on the testimony of the vocational expert
to find that there are jobs that exist in significant numbers
in the national economy that the claimant can perform.
Specifically, the ALJ found that someone with Plaintiff’s
limitations can perform work as a Toll Collector.
(AR at pp.
19-20, ECF No. 17).
On appeal here, Plaintiff challenges the ALJ’s reliance
on the testimony from a vocational expert to find that
Plaintiff can perform work as a Toll Collector.
Plaintiff’s treating physicians stated that she is only
able to stand or walk for a maximum of two hours in an eight
hour workday.
assessments.
The ALJ did not credit the treating physicians’
The ALJ presented a hypothetical to the
vocational expert stating that Plaintiff is able to stand or
walk for six hours in an eight hour workday.
The vocational expert was not presented with a
hypothetical consistent with findings of Plaintiff’s treating
38
physicians.
The vocational expert’s testimony relied on a
residual functional capacity that was not supported by
substantial evidence.
The ALJ’s reliance on the vocational expert to find that
there are jobs that exist in significant numbers in the
national economy is not supported by substantial evidence.
D.
Remand Is Necessary
The ALJ did not provide sufficient reasoning to reject
the opinions of Plaintiff’s treating physicians.
The ALJ also
did not support her finding that the Plaintiff was not
credible.
As a result, the ALJ’s residual functional capacity
assessment is not supported by substantial evidence.
Smith,
2016 WL 4059627, at *3-*4 (citing Penny v. Sullivan, 2 F.3d
953, 956 (9th Cir. 1993); Winters v. Barnhart, 2003 WL
22384784, *6 (N.D. Cal. Oct. 15, 2003).
The decision to remand for further proceedings or order
an immediate award of benefits is within the district court’s
discretion.
2000).
Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir.
It is appropriate to direct an award of benefits when
there is no useful purpose in further administrative
proceedings or where the record has been fully developed.
at 1179.
39
Id.
Here, remand is necessary.
development.
The record needs further
The agency shall develop the record further to
evaluate the medical evidence and the opinions of the
Plaintiff’s treating physicians.
Remand is appropriate
because the record does not support the ALJ’s findings.
Id.
at 1179-81.
On remand, the ALJ shall determine if Plaintiff is
disabled.
20 C.F.R. § 404.1520.
It has been determined that
Plaintiff cannot perform her past work.
The ALJ shall assess
Plaintiff’s residual functional capacity to perform any other
work that exists in significant numbers in the national
economy.
Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir.
2014); Rohrbacher, 2015 WL 1006678, at *6.
CONCLUSION
The Commissioner of Social Security Administration’s
decision is REVERSED AND REMANDED for further proceeding
//
//
//
//
//
40
consistent with this Order.
IT IS SO ORDERED.
DATED: January 27, 2017, Honolulu, Hawaii.
_________________________________
__
Helen Gillmor
United States District Judge
Young Cha Oshiro v. Carolyn W. Colvin, Social Security
Administration Commissioner; Civ. No. 16-00157 HG-KSC; ORDER
REVERSING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION
COMMISSIONER AND REMANDING THE CASE FOR FURTHER PROCEEDINGS
41
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