Adamec v. Colvin
MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 3/31/2017: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
No. 15 C 11811
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Ramona Adamec’s claims
for Disability Insurance Benefits. The parties have consented to the jurisdiction of
the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
that follow, Plaintiff’s motion for summary judgment [Doc. No. 8] is denied.
On March 26, 2012, Adamec filed a claim for disability benefits, alleging
disability since March 12, 2011 3 due to fibromyalgia, chronic pain syndrome,
depression, anxiety, and post-traumatic stress disorder. The claim was denied
initially and upon reconsideration, after which she timely requested a hearing
Nancy A. Berryhill is substituted for her predecessor pursuant to Federal Rule of Civil
All facts from the briefs are undisputed unless otherwise noted.
Plaintiff’s disability onset date was later amended by counsel to February 15, 2012.
before an Administrative Law Judge (“ALJ”), which was held on November 14,
2013. Plaintiff personally appeared and testified at the hearing and was
represented by counsel. Medical expert (“ME”) Dr. Ashok Jilhewar, psychological
ME Dr. O’Brien, and vocational expert (“VE”) Aimee Mowery also testified.
On June 27, 2014, the ALJ denied Plaintiff’s claim for benefits, finding her
not disabled under the Social Security Act. The Social Security Administration
Appeals Council then denied Plaintiff’s request for review, leaving the ALJ’s
decision as the final decision of the Commissioner and, therefore, reviewable by the
District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626
(7th Cir. 2005).
The ALJ found at step one that Adamec had not engaged in substantial
gainful activity since her alleged onset date of February 15, 2012. At step two, the
ALJ concluded that Plaintiff had severe impairments of chronic pain syndrome in
her right foot and impaired social functioning due to depression and anxiety. The
ALJ concluded at step three that her impairments, alone or in combination, do not
meet or medically equal a Listing. The ALJ then determined that Adamec retained
the RFC to perform unskilled, sedentary work, namely work that did not entail:
more than frequent listing up to ten pounds; pushing or pulling with the upper
extremities; sitting for more than six hours in an eight-hour workday; more than
occasional operation of foot controls with the right lower extremity; climbing ropes,
ladders, or scaffolds; more than occasionally climbing ramps and stairs, balancing,
stooping, crouching, crawling, or kneeling; working around hazards; understanding
or remembering detailed or complex instructions; carrying out detailed or complex
tasks; or having more than occasional contact with supervisors, co-workers or
members of the public. At step four, the ALJ found that Adamec is unable to
perform any of her past relevant work, the majority of which was skilled sedentary.
At step five, based upon the VE’s testimony and Adamec’s age, education, work
experience and RFC, the ALJ concluded that Plaintiff can perform jobs existing in
significant numbers in the national economy, leading to a finding that she is not
disabled under the Social Security Act.
ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “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 twelve
months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a Plaintiff is
disabled, the ALJ considers the following five questions in order: (1) Is the Plaintiff
presently unemployed? (2) Does the Plaintiff have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the Plaintiff unable to perform her former
occupation? and (5) Is the Plaintiff unable to perform any other work? 20 C.F.R. §
An affirmative answer at either step 3 or step 5 leads to a finding that the
Plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The Plaintiff bears the burden of proof at steps 1–4. Id.
Once the Plaintiff shows an inability to perform past work, the burden then shifts to
the Commissioner to show the Plaintiff’s ability to engage in other work existing in
significant numbers in the national economy. Id.
Section 405(g) provides in relevant part that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). 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); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
ALJ’s decision must be affirmed even if “’reasonable minds could differ’” as long as
“the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a Plaintiff, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a Plaintiff is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
Adamec argues that the ALJ’s decision was in error because: (1) it offered two
different RFC assessments, neither of which was consistent with the limitations
stated by the testifying medical experts; (2) the ALJ improperly assessed the
medical opinions in the record; (3) the credibility assessment was flawed; and (4)
the VE’s testimony was unsupported.
Plaintiff’s first argument against the RFC can be dispensed with quickly. She
claims that the ALJ made an initial determination that she can work at the light
level, then later determined she was limited to sedentary work, and “[t]his internal
inconsistency in the ALJ’s findings, in and of itself, invalidates the ALJ’s ultimate
determination – that Plaintiff can perform a ‘wide variety’ of other work.” (Pl.’s
Mem. at 7.) As Defendant points out, the header of the RFC section, which states:
“The claimant has the residual functional capacity to perform a range of unskilled,
light work,” (R. 24), is obviously a typographical error. The ALJ made only one RFC
determination, which was “unskilled, sedentary work.” (R. 30.) The postural and
other limitations found by the ALJ are only consistent with unskilled, sedentary
positions. 4 Moreover, even if the ALJ had performed two separate RFC analyses, his
Plaintiff claims that the detailed text enumerating her limitations “only adds to the
confusion” because the ALJ “appeared to cut back on the . . . restrictions he supposedly
adopted. He seemed to state Plaintiff was capable of more than frequent lifting of certain
weights, for example, or sitting for more than six hours . . .” (Pl.’s Mem. at 7) (emphasis in
original). Plaintiff has misread those limitations, which clearly state that she “had the
capacity to perform the exertional and nonexertional requirements of work except for more
than frequently lifting up to 10 pounds at a time . . .” (R. 30) (emphasis added).
ultimate conclusion – that significant numbers of jobs existed under the more
restrictive unskilled, sedentary RFC – would make any such error harmless.
Plaintiff next complains that the RFC did not include all of her limitations
supported by the record. First, she notes the testimony of ME Dr. Jilhewar, who
offered that if missing treatment records documented delayed healing of her right
metatarsal bone, she would meet Listing 1.06. Dr. Jilhewar also suggested her
impairments in combination might equal the listing, but he did not have
documentation of fibromyalgia syndrome, including diagnosis and severity of
symptoms. However, she does not point to any later-filed records demonstrating
delayed healing of the foot. And her citations to the later-filed records from treating
rheumatologist Dr. Katz in support of the fibromyalgia diagnosis and symptomology
merely state “FMS” on March 22, 2012, (R. 478) and “FM – chronic active” on July
31, 2012, (R. 475). At the time he testified, Dr. Jilhewar was already aware that Dr.
Katz said that Plaintiff had fibromyalgia, which he opined made her unable to
work. (R. 422.) Plaintiff has not offered the Court any new evidence to support her
argument that she meets a listing under Dr. Jilhewar’s hypothetical analysis, which
sought information related to the severity of the syndrome and its symptoms.
Plaintiff also argues that the mental limitations included in the ALJ’s RFC
are inconsistent with the testimony of the psychological ME, noting that Dr. O’Brien
limited her to “no more than occasional contact with the public, peers, and
supervisors.” (R. 54.) It is entirely unclear what mental limitations Plaintiff alleges
were not included; the RFC expressly provides that she was to have no more than
“occasional contact with supervisors, coworkers, or members of the public.” (R. 30.)
Plaintiff’s other argument related to Dr. O’Brien’s testimony is based upon a
misunderstanding. She maintains that Dr. O’Brien “noted the absence of relevant
psychological evaluations in the record and suggested there appear to be ‘a whole lot
of other records we’ve never looked at’ that would be essential to a proper
assessment of Plaintiff’s limitations.” (Pl.’s Mem. at 8.) While Plaintiff correctly
observes that there was very little psychological documentation, she grossly
mischaracterizes the testimony related to the “other records.” Dr. O’Brien did not
suggest in any way that there were missing psychological records. To the contrary,
when asked by the ALJ whether Plaintiff’s testimony about her mental
impairments was consistent with the medical evidence, she responded that it could
be related to fibromyalgia, but continued with the question: “Or is there a whole lot
of other records we’ve never looked at that would build along to a case that I don’t
see in this record?” (R. 74.) Indeed, it would be incredible to believe that Dr.
O’Brien, merely a testifying expert, would have any inside knowledge as to whether
additional documentation exists other than the record she reviewed. Plaintiff’s brief
fails to list any mental limitations that were not included in the RFC, let alone
show that those limitations were supported by the actual record before the ALJ.
Assessment of Medical Evidence
Plaintiff first faults the ALJ for noting that “[t]reating clinicians . . . have an
ethical obligation to be supportive of their patients. Thus, it is not inappropriate for
them to report – without comment – the symptoms and functional limitations
reported to them by their patients in completing forms requested by the claimant or
the Administration.” (R. 28.) According to Plaintiff, this statement “plant[ed] this
idea of false reporting,” which he found confusing, as the ALJ did “acknowledge[ ]
that Plaintiff’s treating rheumatologist did not, in fact, do this.” (Pl.’s Mem. at 9.)
The Court does not fault the ALJ for including this statement in his analysis of Dr.
Katz’s opinion, as it reflects well settled Seventh Circuit law. See Stephens v.
Heckler, 766 F.2d 284, 289 (7th Cir. 1985) (“The patient’s regular physician may
want to do a favor for a friend and client, and so the treating physician may too
quickly find disability.”); see also Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.
2008) (explaining that a treater’s opinion “may also be unreliable if the doctor is
sympathetic with the patient” and concluding that if the opinion is “based solely on
the patient’s subjective complaints, the ALJ may discount it”).
Plaintiff next contends that the ALJ improperly applied the treating
physician rule in weighing Dr. Katz’s opinion. An ALJ must give controlling weight
to a treating physician’s opinion if the opinion is both “well-supported” and “not
inconsistent with the other substantial evidence” in the case record. 20 C.F.R. §
404.1527(c); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must
also “offer good reasons for discounting” the opinion of a treating physician.
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal quotations omitted);
Scott, 647 F.3d at 739. The regulations require the ALJ to consider a variety of
factors, including: (1) the length, nature, and extent of the treatment relationship;
(2) the frequency of examination; (3) the physician’s specialty; (4) the types of tests
performed; and (5) the consistency and support for the physician’s opinion. See id.
The ALJ noted that Dr. Katz had seen Plaintiff several times over the span of
four months and provided a general “To Whom It May Concern” note on May 4,
2012, which stated: “Mrs. Adamec is under my care. Due to her fibromyalgia, she is
currently unable to work. We will continue to evaluate patient.” (R. 422.) He found
that under the circumstances, it was necessary to compare this type of report with
the functional limitations noted in contemporaneous treatment records in order to
evaluate her application for benefits. The ALJ detailed the treating relationship,
which lasted from February through July 2012 and explained that Dr. Katz tried to
obtain laboratory data to establish a cause of her symptoms. The ALJ pointed out
that Dr. Katz did not perform function-by-function analysis of Plaintiff’s limitations,
and his progress notes do not describe her activities of daily living. Accordingly, the
only gave Dr. Katz’s opinion some weight.
In its criticism of the ALJ’s treating physician analysis, Plaintiff’s brief
mischaracterizes the assessment and offers no basis to disturb the conclusion. First,
Plaintiff reads the ALJ’s mind, claiming that “the ALJ seemed to determine that
[the five-month treating relationship] did not entitle Dr. Katz’s opinion to any
greater weight than that of a non-treater,” (Pl.’s Mem. at 10), while nothing in the
decision suggests that the ALJ made any such determination. Second, while the
ALJ mentioned that Dr. Katz did seek laboratory data, the lack of data by itself was
not, as Plaintiff argues, “cited . . . as a reason to reject Dr. Katz’s diagnosis of
fibromyalgia.” (Id.) The diagnosis was rejected as it was not supported by any
clinical evidence at all. Significantly, Plaintiff cites SSR 12-2p 5 to show that there is
often no objective evidence of fibromyalgia, but that is simply not what the SSR
says. The SSR explains that “[a]s in all claims for disability benefits, we need
objective medical evidence to establish the presence of an MDI [medically
determinable impairment].” SSR 12-2p at III.A.1. The SSR goes on to explain that a
diagnosis of fibromyalgia must be accompanied by evidence supporting the
existence of specific listed criteria. Id. at II. Only after a medically determinable
impairment is established with objective medical evidence can a person use other,
non-objective evidence to show “the intensity, persistence, and functionally limiting
effects of symptoms,” if the objective evidence does not substantiate the person’s
claims. Id. at IV.B. Plaintiff’s brief points to no objective evidence supporting the
fibromyalgia diagnosis whatsoever, and she certainly has not established that the
SSR 12-2p criteria have been met. The first reference to fibromyalgia is a February
21, 2012 treatment note with Dr. Katz, in which he quotes Plaintiff as asking, “‘Do I
have FM.’ Requested Elavil.” (R. 479); subsequent treatment notes reflect a
diagnosis of “FMS” or “FM” without any other clinical notes listing the basis for the
diagnosis, (R. 475-78). Therefore, even if the ALJ had credited Dr. Katz’s opinion in
toto, that would not have put into the record objective evidence supporting a
fibromyalgia diagnosis. Accordingly, the Court cannot conclude that his
determination was not supported by substantial evidence.
Interpretive rules, such as Social Security Regulations (“SSR”), do not have force of law
but are binding on all components of the Agency. 20 C.F.R. § 402.35(b)(1); accord Lauer v.
Apfel, 169 F.3d 489, 492 (7th Cir. 1999).
Plaintiff contends that the ALJ’s credibility assessment was based upon
improper and unsupported inferences. As an initial matter, the Court notes that
last year, the Administration updated its guidance about evaluating symptoms in
disability claims. See SSR 16-3p, 2016 WL 1119029 (effective Mar. 28, 2016). The
new ruling eliminates the term “credibility” from the Administration’s subregulatory policies to “clarify that subjective symptom evaluation is not an
examination of the individual’s character.” Id. at *1. Though SSR 16-3p post-dates
the ALJ hearing in this case, the application of a new regulation to matters on
appeal is appropriate where the new regulation is a clarification of, rather than a
change to, existing law. Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir. 1993)
(overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)). In
determining whether a new rule constitutes a clarification or a change, courts give
“great weight” to the stated “intent and interpretation of the promulgating agency.”
Id. at 483. Though a statement of intent is not dispositive, courts defer to an
agency’s expressed intent to “clarify” a regulation “unless the prior
interpretation…is patently inconsistent with the later one.” Id.; see also First Nat’l
Bank of Chi. v. Standard Bank & Tr., 172 F.3d 472, 479 (7th Cir. 1999),
Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408 (7th Cir. 1987).
Here, the Administration has specified that its new Social Security Ruling is
intended to “clarify” its application of existing rules and to “more closely follow our
regulatory language regarding symptom evaluation.” SSR 16-3p, 2016 WL 1119029
at *1; see 20 C.F.R. §§ 404.1529, 416.929. Moreover, the two Social Security Rulings
are not patently inconsistent. Indeed, a comparison of the two reveals substantial
consistency, both in the two-step process to be followed and in the factors to be
considered in determining the intensity and persistence of a party's symptoms.
Compare SSR 16-3p and SSR 96-7p. Stated differently, “[t]he agency has had only
one position, although it has expressed that position in different words.”
Homemakers, 832 F.2d at 413. Therefore, it is appropriate to evaluate Plaintiff’s
credibility argument in light of the new guidance the Administration has provided.
Step 1 of the SSR requires a determination of “whether the claimant has a
medically determinable impairment (MDI) that could reasonably be expected to
produce the individual’s alleged symptoms.” SSR 16-3p, 2016 WL 1119029 at *3. In
this case, Adamec’s MDIs are chronic right foot pain, depression, and anxiety. As
stated above, Plaintiff has failed to offer evidence contradicting the ALJ’s
determination that fibromyalgia is not an MDI, and her reported symptoms of
fibromyalgia are not enough to establish the existence of an MDI. See SSR 16-3p,
2016 WL 1119029 at *3-4 (“An individual’s symptoms, such as pain, fatigue,
shortness of breath, weakness, nervousness, or periods of poor concentration will
not be found to affect the ability to perform work-related activities . . . unless
medical signs or laboratory findings show a medically determinable impairment is
present. . . . We will not find an individual disabled based on alleged symptoms
At step 2, the agency is directed to evaluate the intensity and persistence of
an individual’s symptoms such as pain, and determine the extent to which those
symptoms limit the claimant’s ability to perform work-related activities. See SSR
16-3p, 2016 WL 1119029 at *4.
Although he concluded that her allegations of symptoms are disproportional
to the stated impairments, the ALJ did not end his analysis there. The ALJ did not
credit Plaintiff’s allegations about the frequency and extent of her generalized pain
symptoms in part based on her failure to pursue recommended therapy, ranging
from invasive blocks or procedures, physical therapy, massage therapy, and
exercise. He also noted that she did successfully perform several activities of daily
living independently in her third-floor apartment, including preparing simple
meals, going out approximately four times per week, driving, spending time with
parents and sisters, and attending church weekly. And while Plaintiff testified that
her condition has worsened to the point where she did no household chores or
shopping, the ALJ noted that the medical evidence established no worsening of any
of her medical conditions. Although a different adjudicator may have come to a
different conclusion, the Court finds that the ALJ supported his decision with
substantial evidence, and it will not be disturbed.
Plaintiff argues that the ALJ impermissibly “play[ed] doctor” by asserting
that “there was no evidence of Plaintiff’s adverse emotional reaction to pain at the
hearing.” (Pl.’s Mem. at 12.) But once more, Plaintiff misreads the decision, which
states: “That the claimant has experienced an adverse emotional reaction to her
physical condition – as well as psychosocial factors – is consistent with her
testimony that she traces the onset of her alleged impaired concentration – in no
ways evident at the hearing – since she broke her foot.” (R. 26.) He credited her
claim of experiencing an adverse emotional reaction to pain, while noting that he
did not observe any impaired concentration caused by that emotional reaction.
Plaintiff’s brief, while critical of the ALJ’s analysis, fails to offer any evidence
supporting her claim that her symptoms cause her to be unable to perform even
unskilled, sedentary work-related activities. The record citations she provides are
unpersuasive. First, only evidence of disabling pain after the alleged onset date of
February 15, 2012 is relevant. Furthermore, many of Plaintiff’s complaints of pain,
such as back pain and bilateral leg pain, are not associated with a proven MDI and
thus do not support a claim of disability. Finally, she has not adequately explained
why her foot pain and fatigue are not accommodated by a sedentary RFC.
Vocational Expert Testimony
Finally, Plaintiff argues that remand is necessary because there is no basis
for the source or accuracy of the VE’s conclusions about the numbers of available
jobs in the economy. According to Plaintiff, the ALJ erred by accepting the VE’s
testimony without question, specifically her reliance on jobs listed in the Dictionary
of Occupational Titles (“DOT”), the accuracy of which has been criticized by the
Seventh Circuit. 6 See, e.g., Voight v. Colvin, 781 F.3d 871 (7th Cir. 2015); Browning
v. Colvin, 766 F.3d 702 (7th Cir. 2014).
Although expert standards at an ALJ hearing are less stringent than those
under the Federal Rules of Evidence, “an ALJ’s findings must be supported by
substantial evidence” and thus “an ALJ may depend upon expert testimony only if
the testimony is reliable.” McKinnie v. Barnhart, 368 F.3d 907, 910 (7th Cir. 2004).
“A vocational expert is ‘free to give a bottom line,’ but the data and reasoning
underlying that bottom line must be ‘available on demand’ if the claimant
challenges the foundation of the vocational expert’s opinions.” Id. at 911.
First, Plaintiff has waived her DOT argument, because her attorney never
challenged the basis of the VE’s conclusions about available jobs at the hearing. See
Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (“[B]ecause [the plaintiff’s]
lawyer did not question the basis for the vocational expert’s testimony, purely
conclusional though that testimony was, any objection to it is forfeited.”); see also
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (“When no one questions
the vocational expert’s foundation or reasoning, an ALJ is entitled to accept the
vocational expert’s conclusion, even if that conclusion differs from the [DOT] – for
the [DOT], after all, just records other unexplained conclusions and is not even
subject to cross-examination.”). Second, the Seventh Circuit’s repeated criticism of
the use of the DOT in VE testimony, while pointed, was merely dicta and does not
merit remand. See Fitzgerald v. Colvin, 15 CV 135, 2016 WL 447507, at *11 (W.D.
Plaintiff also complains that the ALJ should have offered the VE hypotheticals accounting
for limitations in the missing medical records. But as explained above, the missing records
did not support any additional limitations, and thus any error would be harmless.
Wis. Feb. 4, 2016) (explaining that neither Voight nor Browning overruled
precedent allowing ALJs to rely on unexplained vocational testimony), citing 20
C.F.R. §§ 404.1566(d) and (e), 416.966(d) and (3) (allowing administrative notice of
job information available from the DOT, among other sources).
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
8] is denied, and the Commissioner’s decision is affirmed.
HON. MARIA VALDEZ
United States Magistrate Judge
March 31, 2017
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