Williams v. Commissioner of Social Security
Filing
27
MEMORANDUM AND OPINION. The Commissioner's final decision denying plaintiff's application for disability benefits is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 1/17/2019. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD L. W, 1
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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil No. 18-cv-620-CJP 2
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the
final agency decision denying his application for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in February 2014, alleging he became disabled
as of September 29, 2012. After holding an evidentiary hearing, ALJ Stuart T.
Janney denied the application on March 17, 2017. (Tr. 28-41). The Appeals
Council denied review, and the decision of the ALJ became the final agency
decision.
(Tr. 2).
Administrative remedies have been exhausted and a timely
complaint was filed in this Court.
Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns.
See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
1
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 18.
2
1
Issue Raised by Plaintiff
Plaintiff raises the following issues:
1.
The ALJ erred in weighing the medical opinions.
2.
The ALJ’s physical RFC assessment did not comport with SSR
96-8p in that the ALJ himself interpreted the record and did not
adequately explain the bases for his findings.
3.
The ALJ did not appropriately evaluate plaintiff’s mental
impairments.
4.
The ALJ did not assess plaintiff’s subjective allegations in line
with SSR 16-3p.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes. 3 For these purposes, “disabled” means the “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.” 42 U.S.C. § 423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §
423(d)(3).
“Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R.
pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c,
et seq., and 20 C.F.R. pt. 416. The standard for disability under both sets of statutes are identical.
Furthermore, 20 C.F.R. § 416.925 detailing medical considerations relevant to an SSI claim, relies
on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations. Most citations herein are to the DIB regulations
out of convenience.
3
2
C.F.R. § 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. § 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
Cir. 2009).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
3
three. If the claimant does not have a listed impairment at step three and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at
step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The 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). Thus, this Court must
determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003).
This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
4
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014). However, while
judicial review is deferential, it is not abject; this Court does not act as a rubber
stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921 (7th Cir.
2010), and cases cited therein.
The Decision of the ALJ
ALJ Janney followed the five-step analytical framework described above.
He determined that plaintiff had not been engaged in substantial gainful activity
since the alleged onset date and that he had severe impairments of Tourette’s
syndrome and lumbar spine degenerative disc disease with stenosis, which did not
meet or equal a listed impairment. He found that plaintiff’s mental impairments
were nonsevere because they caused only mild limitations.
The ALJ found that plaintiff had the residual functional capacity to perform
light work limited to no climbing of ladders, ropes or scaffolds; and no exposure to
common workplace hazards such as exposed moving machinery, operation of
commercial motor vehicle equipment, and unprotected heights.
Based on the testimony of a vocational expert, the ALJ found that plaintiff
could not do his past relevant work, but he was not disabled because he was able to
do other jobs that exist in significant numbers in the national economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
focuses on the points raised by plaintiff.
5
1. Agency Forms
Plaintiff was born in 1966 and was 46 years on the alleged date of disability.
(Tr. 350). A prior claim had been denied as of September 28, 2012. (Tr. 351).
He had completed the 11th grade and had worked as a cook in a fast food
restaurant, a laborer, and a personal assistant in an independent living facility.
(Tr. 356).
In a Function Report submitted in May 2014, plaintiff said he had many
“spells” during the day and night during which he fell, hit things, and sometimes cut
himself. He described these as jerking spells. He lived with his aunt. He spent
his time watching tv and occasionally fishing. (Tr. 362-369).
Two friends and plaintiff’s aunt completed Seizure Questionnaires stating
that plaintiff had numerous “seizures” during which he did not lose consciousness.
He jerked and twitched. (Tr. 378-381).
In March 2015, plaintiff reported that he “jerked a lot” and had Tourette’s.
His medications made him feel like he was in slow motion and his concentration
was very poor. (Tr. 391).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in
December 2016.
The ALJ noted that counsel’s pre-hearing brief (Tr. 429)
amended the alleged onset date to May 7, 2014. (Tr. 51-52). The ALJ did not
refer to the amendment in his written decision.
Plaintiff had lost about 40 pounds because he was taking Clonazepam. His
medication had been changed about 2 weeks earlier.
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(Tr. 55).
Before
Clonazepam, he took Haldol which caused memory loss and confusion. He still
had some confusion and memory loss at the time of the hearing. (Tr. 69).
Plaintiff tried to start a lawn care business with a friend, but he could not do
the work. He jerked so hard that he fell off a lawnmower. Pushing a lawnmower
caused him pain in his back. (Tr. 56-57).
Plaintiff testified that he had more than 100 “spells” from Tourette’s
Syndrome each day. They continued through the night and woke him up. He
jerked; sometimes just his arm jerked and other times his whole body jerked. He
sometimes verbalized words during a spell, but he tried not to.
He had this
condition for over 30 years, but it was getting worse as he got older. He sometimes
injured himself during a spell. (Tr. 63-64). He also had deteriorating discs in his
neck and low back. He was taking hydrocodone for low back pain. (Tr. 65).
A vocational expert (VE) also testified. The ALJ asked her a hypothetical
question which corresponded to the RFC assessment. The VE testified that this
person could not do plaintiff’s past work, but he could do other jobs that exist in the
national economy.
(Tr. 72-76).
She also testified that, if plaintiff’s ‘tics”
throughout the day caused him to be off-task for 15% of the workday, there would
be no unskilled occupations that he could perform. (Tr.775).
3. Relevant Medical Records
Dr. Robert Gardner, a neurologist, first saw plaintiff in May 2014. Plaintiff
had a history of involuntary jerking movements sometimes accompanied by
verbalization of curse words. During the exam, plaintiff had “frequent paroxysmal
rather violent tic-like movements of his arms and body.”
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Dr. Gardner suspected
Tourette’s Syndrome.
(Tr. 474-476).
In June 2014, Dr. Gardner prescribed
Clonazepam. (Tr. 495). Because of side effects, his medication was switched to
Haldol. (Tr. 578-579). The dosage of Haldol was increased in October 2014.
(Tr. 576-577).
In November 2014, Dr. Gardner noted a marked reduction in
jerking movements and he no longer had episodes of bad language. (Tr. 574-575).
In February 2015, plaintiff’s Tourette’s was in “fairly good control” on Haldol with
no side effects. (Tr. 572-573).
Plaintiff’s primary care physician was Nicole Kennedy, M. D. She saw him
for follow-up on left-sided back pain in June 2014.
He had been prescribed
Diclofenac at an earlier visit, which was helping his back pain. His neurologist was
evaluating him for Tourette’s. (Tr. 532-534).
In June 2014, Adrian Feinerman, M.D., performed a consultative physical
exam. (Tr. 504-518). Plaintiff was 5’10” tall and weighed 162 pounds. He had a
full range of motion of all joints and of the spine. He had no muscle spasm or
atrophy, and muscle strength was normal throughout.
manipulation were normal.
negative.
Ambulation was normal.
Fine and gross
Straight leg raising was
Plaintiff did exhibit “violent jerks involving his entire body which
occurred every few minutes (less when involved in conversation) and lasted less
than 1 second.” (Tr. 509).
In December 2014, plaintiff told Dr. Kennedy that Dr. Gardner had
prescribed Haldol for his Tourette’s and this was controlling most of his
involuntary movements. His back pain was doing well, but he was having daily
headaches. (Tr. 528-531).
8
The next record from Dr. Kennedy is from June 2016. Plaintiff was trying to
start a lawncare business and had been doing some heavy work. He had increased
back pain on both sides. The pain did not radiate. Physical exam was normal
except for tenderness to palpation over the bilateral SI joints.
Dr. Kennedy
prescribed Tramadol and Prednisone, as well as a lumbar MRI. (Tr. 628-631).
The MRI findings included a small broad-based disc bulge and moderate
facet arthropathy at L4-L5; severe degenerative endplate change and near-complete
disc height loss at L5-S1; and “a small broad-based disc/osteophyte complex with a
right neuroforaminal and lateral disc protrusion/disc complex resulting in
abutment or impingement of the exiting right nerve root. There is no significant
central canal stenosis. There is moderate posterior facet arthropathy contributing
to mild to moderate left neural foraminal narrowing and mild abutment of the left
exiting L5 nerve root.”
Under the section entitled “Impression,” the report says
that there is “moderate to severe central canal stenosis with moderate posterior
facet arthropathy resulting in abutment of the left and abutment/impingement of the
right exiting L5 nerve roots.” (Tr. 632-633).
Plaintiff returned to Dr. Kennedy in August 2016. He said he had been
evaluated by a Dr. Scott, who recommended injections but not surgery. 4 Plaintiff
did not want injections because of his Tourette’s. He elected to continue taking
Tramadol, which was helping with the pain. Again, the only positive finding on
exam was tenderness to palpation over the bilateral SI joints. (626-628).
In May 2016, plaintiff told Dr. Gardner he was having episodes of “loss of
4
There are no records from Dr. Scott in the transcript.
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contact.” In one episode, he had torn up the bathroom walls but did not remember
doing it. He was lost and disoriented at times. He was again taking Clonazepam. 5
Dr. Gardner did not appreciate any “adventitious movements” on exam.
ordered a brain MRI and an EEG.
(Tr. 646-647).
He
The MRI showed some
nonspecific white matter changes. In August 2016, Dr. Gardner again prescribed
Clonazepam, although plaintiff complained of weight loss.
(Tr. 648).
The
ambulatory EEG was normal. (Tr. 643-644).
4.
Medical Opinions
In July 2014, a state agency consultant assessed plaintiff’s physical RFC
based on a review of the record. He determined that plaintiff was capable of doing
work at all exertional levels, limited to no climbing of ladders, ropes, or scaffolds
and not even moderate exposure to hazards such as machinery and heights. (Tr.
142-143). In March 2015, a second state agency consultant reviewed the record
and agreed. (Tr. 155-157).
In December 2016, treating physician Nicole Kennedy, M.D., assessed
plaintiff’s physical RFC. (Tr. 663-667). She said she started treating plaintiff in
April 2014, and his diagnoses are lumbar disc disease, Tourette’s Syndrome,
migraines, and spinal stenosis.
The clinical findings and objective signs were
involuntary movements, and disc protrusion and osteophyte complex at L4-5 and
L5-S1 on MRI causing severe central canal stenosis.
She said that his low back
pain was worsening. In her opinion, he was able to sit for a total of 2 hours a day
It is unclear when plaintiff was put back on Clonazepam. There are no office notes from Dr.
Gardner between February 2015 and May 2016.
5
10
and was able to stand/walk for a total of less than 2 hours a day. The most weight
he could lift was 10 pounds, and he could do that only occasionally. He was likely
to miss more than 4 days of work per month and would require extra breaks.
5.
Records Not Before the ALJ
The transcript contains medical records that that post-date the ALJ’s
decision. (Tr. 9-21).
Plaintiff submitted the additional records to the Appeals
Council, which noted that the records do not relate to the period at issue. (Tr. 3).
Plaintiff cites to these records in his brief. See, Doc. 19, p. 3. However, the
medical records at Tr. 9-21 cannot be considered by this Court in determining
whether the ALJ’s decision was supported by substantial evidence.
Records
“submitted for the first time to the Appeals Council, though technically a part of the
administrative record, cannot be used as a basis for a finding of reversible error.”
Luna v. Shalala, 22 F3d 687, 689 (7th Cir. 1994). See also, Getch v. Astrue, 539
F.3d 473, 484 (7th Cir. 2008); Rice v. Barnhart, 384 F.3d 363, 366, n. 2 (7th Cir.
2004).
Analysis
Plaintiff’s first two points are related. He argues that the ALJ erred in giving
more weight to the opinions of the state agency consultants and discounting Dr.
Kennedy’s opinion. Related to this argument is his second point, that the ALJ
interpreted the medical evidence himself, including the June 2016 lumbar MRI.
Dr. Kennedy was, of course, a treating physician, referred to in the
regulations as a “treating source.” Obviously, the ALJ was not required to credit
her opinion because of her status; “while the treating physician’s opinion is
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important, it is not the final word on a claimant’s disability.” Books v. Chater, 91
F.3d 972, 979 (7th Cir. 1996)(internal citation omitted).
A treating source’s
medical opinion is entitled to controlling weight only where it is supported by
medical findings and is not inconsistent with other substantial evidence in the
record. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016), citing Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Plaintiff’s application was filed before March 27, 2017.
The applicable
regulation, 20 C.F.R. § 404.1527(c)(2), provides, in part:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. [Emphasis added]
If the ALJ decides not to give the opinion controlling weight, he is to weigh it
applying the factors set forth in § 404.1527(c)(1)-(6).
Supportability and
consistency are two important factors to be considered in weighing medical
opinions. In a nutshell, “[t]he regulations state that an ALJ must give a treating
physician's opinion controlling weight if two conditions are met: (1) the opinion is
supported by ‘medically acceptable clinical and laboratory diagnostic techniques[,]’
and (2) it is ‘not inconsistent’ with substantial evidence in the record.” Schaaf v.
Astrue, 602 F.3d 869, 875 (7th Cir. 2010).
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Here, the ALJ gave “little weight” to Dr. Kennedy’s opinion. He recognized
that she was a treating source, but she was not a specialist. He stated that her
opinion “is not consistent with the objective record evidence” and pointed out that
the “only positive examination finding was some tenderness.”
He noted that
plaintiff never went to the emergency room for “acute conditions, indicating he
would not require extra breaks or have excessive absenteeism.” He also concluded
that the “significant stenosis warrants some limitations, as set forth in the residual
functional capacity. However, the extreme limitations Dr. Kennedy assessed are
not supported.” (Tr. 37).
The ALJ gave “great weight” to the opinions of the state agency consultants
regarding plaintiff’s nonexertional limitations but concluded that he was limited to
light work and was not able to do work at all exertional levels as those consultants
found. (Tr. 38).
Plaintiff argues that § 404.1527(c)(2) requires the ALJ to give good reasons
for his decision to give less than controlling weight to the opinion of a treating
physician. He refers to medical records reflecting treatment after the date of the
ALJ’s decision, but, again, the Court cannot consider those records. Doc. 19, p. 7.
Plaintiff argues that the ALJ impermissibly made his own independent
medical conclusions in two respects. He concluded that a lack of emergency room
treatment meant that plaintiff would not be likely to need extra breaks or miss
work, and he interpreted the results of the lumbar MRI himself.
The Commissioner argues generally in her brief that the ALJ’s RFC
assessment was supported by the evidence. She refutes the emergency room point
13
by saying that “The ALJ did not state that Plaintiff’s impairments should have
necessitated emergency-room visits. Instead, the ALJ reasonably noted the lack of
support for Dr. Kennedy’s opinion that Plaintiff’s symptoms required extra breaks
and excessive absences.” Doc. 25, p. 9. She argues, ineffectively, that the ALJ did
not improperly characterize the objective test results, but, rather, “discussed
them.” Doc. 25, pp. 10-11.
The Court agrees that the ALJ erred in weighing the medical opinions.
First, the ALJ impermissibly “played doctor” in concluding that the lack of
ER visits cast doubt on Dr. Kennedy’s opinion. There is no medical evidence in the
file to support the conclusion that lack of ER visits indicates that the claimant
would not need extra breaks or miss work, and the ALJ erred by drawing that
conclusion himself. Voigt v. Colvin, 781 F.3d 871, 877 (7th Cir. 2015); Hill v.
Colvin, 807 F.3d 862, 868 (7th Cir. 2015), and cases cited therein.
More significantly, the ALJ reached his own conclusions about the
significance of the lumbar MRI findings. Dr. Kennedy reviewed those findings; the
state agency consultants obviously did not.
The ALJ discounted Dr. Kennedy’s opinion because it was “not consistent
with the objective record evidence.”
However, the ALJ was not competent to
decide that the lumbar MRI results were not consistent with the doctor’s opinion.
“ALJs must rely on expert opinions instead of determining the significance of
particular medical findings themselves.” Lambert v. Berryhill, 896 F.3d 768, 774
(7th Cir. 2018).
In addition, it was error for the ALJ to credit the state agency consultants’
14
opinions as to plaintiff’s nonexertional limitations when they had no opportunity to
review the lumbar MRI. In Stage v. Colvin, 812 F.3d 1121 (7th Cir. 2016), the
Seventh Circuit held that the ALJ erred in accepting a reviewing doctor’s opinion
where the reviewer did not have access to later medical evidence containing
“significant, new, and potentially decisive findings” that could “reasonably change
the reviewing physician's opinion.” Stage, 812 F.3d at 1125. In a later case, the
Seventh Circuit reiterated the rule.
“An ALJ should not rely on an outdated
assessment if later evidence containing new, significant medical diagnoses
reasonably could have changed the reviewing physician’s opinion.”
Moreno v.
Berryhill, 882 F.3d 722, 728 (7th Cir. 2018), as amended on reh'g (Apr. 13, 2018).
See also, Lambert, 896 F.3d at 776.
In view of the disposition of plaintiff’s first two points, it is not necessary to
analyze his other arguments. On remand, the ALJ should consider the correct
Listing for Tourette’s Syndrome, 12.11, and properly assess plaintiff’s subjective
allegation in accordance with SSR 16-3p.
An ALJ’s decision must be supported by substantial evidence, and the ALJ’s
discussion of the evidence must be sufficient to “provide a ‘logical bridge’ between
the evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.
2009), internal citations omitted. The Court must conclude that ALJ Janney failed
to build the requisite logical bridge here. Remand is required where, as here, the
decision “lacks evidentiary support or is so poorly articulated as to prevent
meaningful review.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012).
The Court wishes to stress that this Memorandum and Order should not be
15
construed as an indication that the Court believes that plaintiff was disabled during
the relevant period, or that he should be awarded benefits. On the contrary, the
Court has not formed any opinions in that regard and leaves those issues to be
determined by the Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying plaintiff’s application for
disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and reconsideration of the evidence, pursuant to sentence four of 42
U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE:
January 17, 2019.
s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE
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