BUIS v. COLVIN
Filing
42
ENTRY ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION 39 - The court ADOPTS in part and REJECTS in part the Magistrate Judge's report and recommendation. Specifically, the court ADOPTS the Magistr ate Judge's findings regarding the following three objections: the evaluation of the opinions of Doctors Wenzler and Ruiz, that substantial evidence supported the ALJ's step five finding, and the ALJ's evaluation of the medical opin ion of Dr. Schneider. The court REJECTS the Magistrate Judge's findings on the following three objections and orders these issues REMANDED to the ALJ for further consideration: the opinion of Dr. Staley, Listing 14.09B, and the credibility of Buis. Signed by Judge Richard L. Young on 2/11/2015.(JLM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD D. BUIS,
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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Defendant.
1:13-cv-00878-RLY-MJD
ENTRY ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Richard D. Buis, appeals the Administrative Law Judge’s decision
denying his application for social security disability benefits. Pursuant to 28 U.S.C. §
636, the court referred the matter to the Magistrate Judge (Filing No. 38), who submitted
his report and recommendation on August 6, 2014. (Filing No. 39). The Plaintiff objects
to the Magistrate Judge’s report and recommendation. (Filing No. 40). The
Commissioner did not respond to Buis’s objections. For the reasons set forth below, the
court ADOPTS in part and REJECTS in part the Magistrate Judge’s report and
recommendation.
I.
Background
Buis applied for Social Security Disability Benefits and Supplemental Social
Security Income at the age of forty-six due to his “[r]heumatoid arthritis; depression;
tendinitis; restless leg syndrome; neuropathy; fibromyalgia; [and] myopathy.” (R. at
1
375). In his application, Buis reported that his ability to work is limited by his conditions
because he can stand for two hours at the most, he has a great deal of pain and weakness
in his hands and feet, he is forced to spend a significant amount of time in bed due to this
pain, and he is now depressed by his limitations. (R. at 375).
Buis filed his application on June 30, 2006, alleging an onset date of October 14,
2003. Buis acquired sufficient quarters of coverage 1 under sections 216(i) and 223 of the
Social Security Act to remain insured through September 30, 2008 (hereinafter “the date
of last insured” or “DLI”). Thus, Buis must establish disability on or before that date to
be entitled to a period of disability and disability insurance benefits. Buis’s application
was initially denied on September 18, 2006. On January 21, 2009, a hearing was held
before an Administrate Law Judge (“ALJ”). That ALJ’s decision was remanded to
specify Buis’s sit/stand limitations. A second hearing was held on September 30, 2010,
before a different ALJ, with a supplemental hearing on May 4, 2011, to allow Buis to
review evidence that had been submitted anonymously. A second supplemental hearing
was held on August 11, 2011, to obtain additional evidence from the vocational expert
(“VE”).
The second ALJ found that Buis had the following severe impairments:
rheumatoid arthritis, fibromyalgia and obesity. After reviewing the mental health
functional areas, the ALJ found that Buis’s depression caused only a “mild” limitation.
1
According to the Social Security website, “a [quarter of coverage] is the basic unit for
determining whether a worker is insured under the Social Security program.” See
http://www.socialsecurity.gov/oact/cola/QC.html.
2
The ALJ concluded that Buis was not under a disability at any time from the alleged
onset date through the date of last insured. Buis appealed to the Appeals Council, which
denied his request for review. Buis filed his complaint in this court on May 30, 2013.
The court will incorporate any additional facts as necessary throughout the
discussion portion. For a more thorough review of the facts, the court adopts the fact
portion of the Magistrate Judge’s report and recommendation. (Filing No. 39, at ECF pp.
1-8).
II.
Standard
A.
Review of Magistrate Judge’s Report and Recommendation
When a party raises specific objections to elements of a magistrate judge’s report and
recommendation, the district court reviews those elements de novo, determining for itself
whether the magistrate judge’s decision as to those issues is supported by substantial
evidence or was the result of an error of law. FED. R. CIV. PRO. 72(b). The district court
“‘makes the ultimate decision to adopt, reject, or modify’ the report and recommendation,
and it need not accept any portion as binding;” the court may, however, defer to and
adopt those conclusions where a party did not timely object. Sweet v. Colvin, No. 1:12cv-00439-SEB-TAB, 2013 WL 5487358, * 1 (S.D. Ind. Sept. 30, 2013) (quoting Schur v.
L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th Cir. 2009)).
B.
Review of the ALJ’s Decision
In reviewing the Commissioner’s factual findings, courts are deferential; if her
findings are supported by substantial evidence, then courts must affirm. See Skarbek v.
Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); see also 42 U.S.C. § 405(g). “Although a
3
mere scintilla of proof will not suffice to uphold an ALJ’s findings, the substantial
evidence standard requires no more than such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Blakes v. Barnhart, 331 F.3d 565,
568 (7th Cir. 2003). In other words, substantial evidence is more than a scintilla, but less
than a preponderance of the evidence. See Wood v. Thompson, 246 F.3d 1026, 1029 (7th
Cir. 2001). Nevertheless, the ALJ is obligated “to consider all relevant medical evidence
and cannot simply cherry-pick facts that support a finding of non-disability while
ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419,
425 (7th Cir. 2010). An ALJ is not required to discuss every piece of evidence, but if the
decision lacks an adequate discussion of the issues, the court will remand it. See
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). An adequate discussion ensures
that the ALJ built a logical bridge from the evidence to his conclusion. Denton, 596 F.3d
at 425.
III.
Discussion
Buis raises six arguments as to why the court should reverse the decision of the
ALJ. They are: (1) the ALJ improperly evaluated the opinion of Buis’s “treating
rheumatologist,” Dr. Harry Staley; (2) the ALJ improperly evaluated whether Buis’s
impairment or combination of impairments met or medically equaled Listing 14.09B; (3)
the ALJ improperly evaluated the medical opinions of state agency medical consultants,
doctors Richard Wenzler and M. Ruiz, with regard to Buis’s ability to stand and walk
during an eight hour work day; (4) the ALJ improperly evaluated the credibility of the
testimony of Buis; (5) the ALJ’s step five finding was not supported by substantial
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evidence because the vocational expert failed to provide a proper foundation for the
number of jobs; and (6) the ALJ failed to evaluate the medical opinion of Dr. Susan
Schneider. The Magistrate Judge rejected each of the six reasons. Buis objects to each of
the six conclusions of the Magistrate Judge in his report and recommendation. The court
will consider each in turn.
A.
The Opinions of Dr. Harry Staley
Buis first argues that the ALJ committed reversible error by failing to consider the
September 12, 2010, assessment of Dr. Staley, Buis’s treating rheumatologist. That
assessment noted that Buis had “intermittent pain and swelling; erosions of joints at base
of toes in both feet; chronic pain in fingers of both hands with swelling and chronic pain
in both shoulders and both knee[s].” (R. 1319). Additionally, he noted that the pain was
moderate to severe. (R. 1319). The report states that emotional distress and/or
psychological factors contribute to Buis’s symptoms and functional limitations. (R.
1320). Additionally, Dr. Staley estimated the number of hours Buis can sit and
stand/walk during an 8 hour workday; he found that Buis could not maintain full time
employment and would miss more than three days of work per month. (R. 1321-1322,
1324). Further, Dr. Staley found that Buis has significant limitations in doing repetitive
handling or fingering. 2 Specifically, Dr. Staley estimated that during an 8-hour workday,
Buis could perform handling and fingering with each hand for only 1/3 of an 8-hour
2
“Handling is seizing, holding, grasping, turning, or otherwise working primarily with the whole
hand or hands; and fingering involves picking, pinching, or working primarily with the fingers.”
(R. 1323).
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workday (R. 1323-1324). Finally, Dr. Staley said he did not know if the limitations he
set forth would have been better or worse when he first started treating Buis in July of
2006. (R. 1324).
Notably, the ALJ did not discuss this particular report; this much is undisputed.
(R. 20-22). Rather the dispute centers around whether reversible error was committed in
not discussing the report and what weight must be given to the report. According to Buis,
this report is entitled to controlling weight because it was prepared by a treating
physician. The Magistrate Judge first found that the report was not entitled to controlling
weight because it is not supported by clinical and laboratory findings necessary to
warrant controlling weight pursuant to Social Security Ruling 96-8p. Second, the
Magistrate Judge concluded that even if it were adequately supported, it is irrelevant
because the report post-dated the date of last insured and does not relate back to Buis’s
pre-DLI condition. The court will consider the second argument first.
The Magistrate Judge relied on Eichstadt v. Astrue, 534 F.3d 663 (7th Cir. 2008)
to reach his conclusion. In Eichstadt, the Seventh Circuit found that the ALJ did not fail
to consider evidence, contrary to the claimant’s allegations. Id. at 667. The Court
reasoned that the ALJ had considered such evidence but found it to be irrelevant because
it did not address the correct time period. Id. Additionally, the Court emphasized that
the ALJ gave no weight to the opinion because the doctor did not begin to treat the
patient until twelve years after the DLI. Id.
Buis argues that his case is distinguishable from Eichstadt for three reasons: (1)
Dr. Staley treated Buis prior to the DLI, (2) Buis’s primary diagnosis of rheumatoid
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arthritis was well established prior to the DLI, and (3) there is considerable pre-DLI
evidence that supports the opinion of Dr. Staley. Additionally, Buis relies on Halvorsen
v. Heckler, 743 F.2d 1221, 1226 (7th Cir. 1984). In that case, the Seventh Circuit held
that the ALJ’s failure to consider the post-DLI records mandated reversal of the case. Id.
Additionally, the Seventh Circuit stressed that such evidence should not be viewed in
isolation. Id.
The court agrees with Buis that pursuant to applicable Seventh Circuit case law,
the ALJ was required to consider the post-DLI evidence. The ALJ could have articulated
reasons why such evidence was irrelevant; however, he did not. The ALJ cannot simply
ignore evidence from a treating physician that he disagrees with. See Denton, 596 F.3d at
425. As such, the court will examine whether the ALJ evaluated post-DLI evidence
supplied by Dr. Staley.
Although the ALJ did not evaluate the September 2010 report, he did consider the
May 31, 2011, assessment from Dr. Staley, and found the following:
The only findings that Dr. Staley cites in making the assessment concerning
use of the hands are swelling and tenderness of the small joints in his hands
and some remote, abnormal laboratory findings. In my opinion, these
findings do not justify limiting the claimant to only occasional use of the
hands.
(R. 22) (citing R. 1554). The ALJ discounted Dr. Staley’s findings because they were not
consistent with other evidence in the record. That evidence includes the report from Dr.
Iodoro, Buis’s primary-care physician. Dr. Iordoro observed that Buis “has passive
[range of motion] of the joints but fights it with good motor.” (R. 1014).
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After reviewing the ALJ’s opinion, the court concludes that the ALJ’s findings
were based on a determination that disabling rheumatoid arthritis is inconsistent with a
full range of motion. This is, however, “quintessentially a matter for medical judgment”
that the ALJ cannot determine. See Liskowitz v. Astrue, 559 F.3d 736, 741 (7th Cir.
2009) (“It is quintessentially a matter for medical judgment whether disabling rheumatoid
arthritis is consistent with ‘a full range of motion’ or ‘joint synovitis.’”). The medical
records supplied by Dr. Iodoro do not address limitations regarding the use of the hands,
thus they are not necessarily inconsistent with Dr. Staley’s findings. In fact, the evidence
in the record, submitted by Dr. Staley, explains that:
Granted [Buis] has full motion in his fingers and hands because although he
has swelling, there is no significant damage to the joints. However, the
nature of his illness is that any repetitive activity leads to excessive swelling
and pain. Therefore, most of the work he can do with his hands would be on
a very limited basis and only on an intermittent basis.
(R. 1554). The ALJ fails to articulate why Dr. Staley’s statement indicating that a full
range of motion may still be consistent with a very limited use of the hands conflicts with
other evidence. As such the court finds that the ALJ failed to build the requisite logical
bridge. Therefore, the court REJECTS the Magistrate Judge’s recommendation on this
ground and instead orders this issue remanded for reconsideration by the ALJ.
B.
Listing 14.09B
The Magistrate Judge found that substantial evidence supported the ALJ’s
conclusion that Buis’s impairments did not meet or medically equal Listing 14.09B.
Specifically, the ALJ found:
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[t]he foregoing evidence indicates that the claimant’s impairment does not
cause the very serious limitations required by Section 14.09. The claimant
may have some limitations on his ability to stand and/or walk throughout a
workday or lift more than twenty pounds. However, he has not had persistent
inflammation and he is able to ambulate and to perform fine and gross
movements.
(R. 19).
Buis objects to this finding, arguing that the ALJ and Magistrate Judge
misunderstood the requirement of a “moderate level” of severity in 14.09B. To meet
Listing 14.09B, the claimant must show the following three requirements: (1)
“inflammation or deformity in one or more peripheral joints,” (2) “involvement of two or
more organs/body systems with one of the organs/body systems involved to at least a
moderate level of severity,” and (3) “at least two of the constitutional symptoms or signs
(severe fatigue, fever, malaise, or involuntary weight loss).” 20 C.F.R. pt. 404, subpt. P,
App. 1. Severe fatigue is defined as “a frequent sense of exhaustion that results in
significantly reduced physical activity or mental function.” Listing 14.00C. “Malaise
means frequent feelings of illness, bodily discomfort, or lack of well-being that result in
significantly reduced physical activity or mental function.” Listing 14.00C. According to
Buis, moderate severity refers to medical terminology, not legal terminology. See Listing
14.00C.12 (“Severe means medical severity as used by the medical community. The term
does not have the same meaning as it does when we use it in connection with a finding at
the second step of the sequential evaluation process in Sections 404.1520, 406.920, and
416.924.”) (italics in original).
9
The court cannot determine from the ALJ’s opinion whether he considered Listing
14.09B. The ALJ concluded that Buis’s impairments do not cause the “very serious
limitations required by Section 14.09;” however these is no indication whether the
limitations would amount to a moderate level of severity as required by 14.09B. As such
the court cannot conclude that sufficient evidence supports the ALJ’s finding that Buis’s
impairments do not satisfy listing 14.09B. The court REJECTS this portion of the
Magistrate Judge’s report and recommendation, and finds that this issue should be
remanded to the ALJ for further consideration.
C.
The Opinions of the State Agency Medical Consultants
Buis also contends that the ALJ misconstrued the medical opinions of the State
Agency medical consultants when he concluded that Buis is able to stand and/or walk for
four hours during the workday. Specifically at issue is part of a physical residual
functional capacity assessment completed by Dr. Wenzler. As part of the assessment, Dr.
Wenzler faced the following question concerning Buis’s limitations:
3.
Stand and/or walk (with normal breaks) for a total of –
□ Less than 2 hours in an 8-hour workday
□ At least 2 hours in an 8-hour workday
□ About 6 hours in an 8-hour workday
□ Medically required hand-held assistive device is necessary for
ambulation
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(R. 1062). On September 14, 2006, Dr. Wenzler marked the box stating at least 2 hours
in an 8-hour workday. (R. 1062). Dr. Ruiz confirmed this assessment on December 2,
2006. (R. 1070).
From this information, the ALJ determined that Buis could stand and/or walk with
normal breaks for a total of 4 hours in an 8-hour workday. (R. 19-22). According to
Buis, the state agency doctors found that he could stand and/or walk for up to 2 hours, but
no more. The Magistrate Judge found Buis’s interpretation to be flawed; rather,
according to the Magistrate Judge, “Dr. Wenzler assessed Buis as being able to stand or
walk for ‘at least’ two hours, but not quite at or ‘about’ six hours during a workday.”
Filing No. 39, at ECF p. 15).
Buis relies on the relevant provisions of the Program Operations Manual System
(“POMS”) to support his argument. The POMS explains that in responding to the
questions on the form containing the question above, the assessor should check the blocks
that represent the maximum amount the individual can clearly do on a sustained basis and
if an individual can do a maximum amount greater than the amount checked, the assessor
should describe and explain the amount at the end of the section. PMS DI 24510.050C
I.A., available at https://secure.ssa.gov/apps10/poms.nsf.lnx/0424510050. Thus, Buis
contends that two hours is the maximum because no explanation was given explaining
how he can do more than the “at least two hours.”
The court agrees with the Magistrate Judge’s findings. Basic math teaches that the
term “at least” means an amount greater to or equal to the number following it. Thus, by
checking that box, Dr. Wenzler found that Buis could stand or walk for two hours or
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more and less than the 6 hours in the next choice. Although the question is poorly
worded in light of the POMS request to establish a maximum amount, the answer still
reveals that a maximum amount would be under 6 hours. The court finds that the ALJ
did not misinterpret this evidence; therefore, the court will not reverse and remand for a
supplemental hearing on this issue. The court ADOPTS this portion of the Magistrate
Judge’s report and recommendation.
D.
Mr. Buis’s Credibility
The ALJ concluded that Buis was partially credible. The ALJ found Buis’s
statements concerning the intensity, persistence and limiting effects of Buis’s symptoms
were not credible to the extent they are inconsistent with the ALJ’s residual functional
capacity assessment. (R. 20). The ALJ further explained that the medical evidence does
not show a condition that would preclude sitting and cites examples of Buis visiting a
health club and going on road trips. Additionally, the ALJ found that Dr. Staley’s
assessment on May 31, 2011, limiting Buis to the occasional use of his hands was
inconsistent with other evidence in the record, such as the reports from Dr. Iodoro and
Buis’s own testimony. The Magistrate Judge found that the ALJ adequately explained
his credibility determination and that it was not patently erroneous.
In reviewing credibility, the court will not “upset credibility determinations on
appeal so long as they find some support in the record and are not patently wrong.”
Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994). The ALJ must give specific reasons
for his credibility determination. When these reasons rely on objective factors or
fundamental implausibilities, the court has greater freedom to review the ALJ’s decision.
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Id. Buis urges the court to use this greater freedom to overturn the ALJ’s credibility
determination.
Buis argues that the evidence submitted by Dr. Harry Staley supports his
assertions and thus the determination was patently erroneous. Because the court is
remanding this case on the issue of whether the ALJ gave proper weight to Dr. Staley’s
reports, the ALJ should re-evaluate his credibility determination after reviewing the
evidence from Dr. Staley. Thus, the court REJECTS this portion of the Magistrate
Judge’s report and recommendation and this issue is remanded.
E.
The Testimony of the Vocational Expert
Fifth, Buis objects to the Magistrate Judge’s determination that the testimony
provided by the vocational expert (“VE”) is reliable. In order for an ALJ’s step five
determination to be supported by substantial evidence, any VE testimony relied on in
reaching his conclusion must be “reliable.” McKinnie v. Barnhart, 368 F.3d 907, 910
(7th Cir. 2004). Federal Rule of Evidence 702 “does not strictly apply to disability
adjudications.” Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). However,
evidence is not substantial if the VE’s testimony “has been conjured out of whole cloth.”
Id. Finally, while it is permissible for a VE to provide conclusory testimony, “any data
or reasoning underlying the VE’s bottom line must be ‘available on demand.’” Britton v.
Astrue, 521 F.3d 799, 803 (7th Cir. 2008) (quoting Donahue, 279 F.3d at 446).
Buis offers two reasons why the VE’s testimony is not reliable. First, Buis argues
that the VE had inconsistent testimony regarding the source of his numbers concerning
available jobs. A quick review of the transcript shows that the VE was not inconsistent.
13
At the first hearing, the VE testified that the job numbers he was referencing came from
the current population survey from the Bureau of Labor statistics. This information is
broken down by “types of work” and by state. At the second hearing, Buis’s attorney
asked the VE how he broke down the jobs by the level of exertion. The VE testified that
the break down by skill or exertional level was done using information from U.S.
Publishing. U.S. Publishing bases its figures on the standard occupational classifications
and occupational employment statistics. The VE used different sources to classify the
number of jobs based on different criteria. This does not show any inconsistency on the
part of the VE. Thus, the court rejects this argument.
Second, Buis argues that U.S. Publishing is not a reliable source because it
randomly assigns Dictionary of Occupational Titles numbers to its data and does not
show its methodology and margin of error on its website. In support of this argument,
Buis relies on a book written by a social security plaintiff’s attorney titled Social Security
Disability Advocate’s Handbook. (R. 511). The Magistrate Judge noted that “the ALJ
thoroughly discussed the VE’s testimony and concluded that it was ‘generally consistent
with the information contained in the Dictionary of Occupational Titles.’” (Filing No.
39, at ECF p. 21) (citing R. 23-25). After a review of the ALJ’s decision, the court
agrees with the Magistrate Judge and finds that the VE’s testimony is reliable. The court,
therefore, ADOPTS this portion of the Magistrate Judge’s report and recommendation.
F.
The Opinion of Dr. Susan Schneider
Buis objects to the Magistrate Judge’s finding that the ALJ properly evaluated the
opinion of Dr. Susan Schneider, a psychiatrist treating Buis. Buis states that the ALJ
14
erred in three ways by not considering Dr. Schneider’s opinion that he was “quite
disabled” by his major depression. (R. 1105). Buis acknowledges that not every finding
needs to be evaluated, but argues the ALJ was under a duty to include this particular
finding because it indicates disability.
As the Magistrate Judge noted, the ALJ cited to the exact page of evidence that
mentioned that Buis was “quite disabled.” The court finds that the ALJ thoroughly
considered the mental health functional areas in determining that Buis’s depression was
“frustration based” and did not qualify as severe for disability purposes. As the
Magistrate Judge stated:
The Seventh Circuit explained in Carlson that, so long as “the ALJ
considered the important evidence” in a manner that enables the reader “to
trace the path of the ALJ’s reasoning,” the ALJ does not err. 999 F.2d at
181. Here, the ALJ has done just that, citing to the very exhibit that Buis
contends was not sufficiently addressed and explaining that the same
clinical records are sparse and indicate that Buis’s depression is frustration
based.
(Filing No. 39, at ECF p. 22). Because this evidence was considered by the ALJ, the
court adopts the Magistrate Judge’s report finding that the ALJ properly considered Dr.
Schneider’s opinion in finding that Buis’s depression was not a severe impairment as
defined by the Social Security Act. The court, thus, ADOPTS this portion of the
Magistrate Judge’s report and recommendation.
IV.
Conclusion
In conclusion, the court ADOPTS in part and REJECTS in part the Magistrate
Judge’s report and recommendation (Filing No. 39). Specifically, the court ADOPTS the
Magistrate Judge’s findings regarding the following three objections: the evaluation of
15
the opinions of Doctors Wenzler and Ruiz, that substantial evidence supported the ALJ’s
step five finding, and the ALJ’s evaluation of the medical opinion of Dr. Schneider. The
court REJECTS the Magistrate Judge’s findings on the following three objections and
orders these issues REMANDED to the ALJ for further consideration: the opinion of
Dr. Staley, Listing 14.09B, and the credibility of Buis.
SO ORDERED this 11th day of February 2015.
_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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