Bedford v. Commissioner of Social Security
Filing
18
MEMORANDUM OPINION AND ORDER: The decision of the ALJ is reversed and the Commissioner is directed to compute and award disability benefits to Plaintiff Tresa M Bedford with an onset date of May 16, 2007 - See text of Order for further details. Signed by Senior Judge Donald E O'Brien on 04/19/11. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
TRESA M. BEDFORD,
Plaintiff,
No. 09-CV-3081-DEO
vs.
MEMORANDUM OPINION AND ORDER
COMMISSIONER OF SOCIAL
SECURITY, agent of Michael
J. Astrue,
Defendant.
____________________
I.
INTRODUCTION AND BACKGROUND
Plaintiff,
Tresa
M.
Bedford
(hereinafter
“Bedford”),
seeks disability insurance benefits under Title II of the
Social Security Act (the “Act”), 42 U.S.C. §§ 401 et seq., and
supplemental security income benefits under Title XVI of the
Act, 42 U.S.C. §§ 1381 et seq.
Tr. 77-79, 335-38.
Bedford
seeks review of the Commissioner’s decision that she is not
disabled under the Act.
This Court has authority to review a
final decision by the Commissioner under 42 U.S.C. §§ 405(g)
and 1383(c)(3).
Bedford alleges that she was disabled beginning on May 1,
2005, due to depression, anxiety, bipolar disorder, and posttraumatic stress disorder.
She was born in 1971, is a mother
of three children, and has past relevant work experience as a
nurse assistant, home attendant, and assembly room supervisor.
Tr. 171.
According to the ALJ, Bedford’s earnings record
shows that she remains insured through September 30, 2011.
Tr. 26.
A.
Medical Treatment Records
Bedford’s mental health treatment records substantially
begin on May 5, 2005, when she was referred to Psychiatry, Lee
&
Associates,
with
impulsive behavior.
depression,
Tr. 189-193.
suicidal
ideation,
and
Bedford reported problems
involving her husband, who had moved out of their home to live
with another woman.
Tr. 189.
She also reported losing her
job for taking another person’s credit card and reported she
would be arrested for the crime.
Tr. 189.
She described that
she felt as if she was floating above her body and watching
herself do things, such as stealing the resident’s credit
card.
Tr. 190.
Bedford rated her depression and anxiety as
a “10” on a 1-10 scale, 10 being the most depressed.
Tr. 189.
Bedford complained of constant fatigue and tiredness.
189, 192.
Tr.
She was diagnosed with major depression with
psychotic features, marriage issues, family-of-origin issues,
2
education,
and
employment
problems.
Tr.
192.
She
was
assessed a Global Access of Functioning (“GAF”) score of 45.
Tr. 192.
On July 6, 2005, Bedford saw Psychologist Dan Rogers for
a consultative examination. Dr. Rogers noted Bedford’s father
was an alcoholic, was in prison for murder, and sexually
abused Bedford. He also noted that Bedford’s brother sexually
abused her several times when she was 12.
Tr. 181.
Dr.
Rogers noted Bedford’s legal troubles and that Bedford had no
social life and no real friends.
Dr.
Rogers
observed
Tr. 182.
that
Bedford
was
“obviously
depressed.” Bedford’s judgment was good about most things but
“poor” regarding people.
Tr. 182.
Dr. Rogers concluded that
Bedford had “major depression that has persisted for some time
at a moderate level.” He further concluded Bedford’s pace was
“very poor” and she was “not able to maintain concentration,”
and
thus,
reliably.”
she
was
Tr. 183.
“not
able
to
carry
out
instructions
Dr. Rogers stated, “[Bedford] cannot
interact appropriately with supervisors, coworkers, or the
public for more than brief periods of time.
It would be
difficult for her to adjust to changes in the work place.”
3
Tr. 183.
He diagnosed Bedford with major depression, without
psychosis, and depressive personality.
GAF score of 55.
Bedford
He assessed Bedford a
Tr. 183.
continued
treatment
Associates through December 2006.
at
Psychiatry,
Lee
&
She began treatment at
North-Central Iowa Mental Health Center in February 2007.
At Bedford’s initial evaluation on February 13, 2007, she
reported
that
depression.
she
continued
Tr. 326.
to
have
“quite
a
bit”
of
She reported that it took everything
she had to get out of bed in the morning.
She stated she lost
interest in everything and had very low energy.
Tr. 326.
Bedford reported of her anxieties with respect to her husband,
children, and financial condition.
Tr. 326-27.
She reported
that she had very low self-esteem, which was very affected by
what other people said or did.
Tr. 327.
Bedford also stated
that she got off track easily and had a hard time focusing on
the evaluation.
Tr. 330.
Michelle Shaver, Licensed Master
Social
diagnosed
Bedford
Worker,
with
major
disorder and assessed her a GAF score of 50.
depressive
Tr. 331.
On March 28, 2007, Dr. Shaheena Minhas of North-Central
Iowa Mental Health Center conducted a psychiatric evaluation.
4
Tr. 319-21.
At this evaluation, Bedford stated she believed
she had depression all of her life because her father and
brother sexually abused her from ages 10-13.
She complained
of low energy, and she had poor concentration.
Minhas
diagnosed
disorder,
Bedford
severe,
psychosocial
Tr. 321.
of 50-55.
part
recurrent,”
stressors,
husband.”
in
with
and
financial
Tr. 319.
“major
depressive
“moderately
issues,
Dr.
severe
separated
from
Dr. Minhas assessed Bedford a GAF score
Tr. 321.
On May 16, 2007, Bedford saw Psychiatrist Paul Anderson
for a Social Security Disability evaluation. Tr. 306-09. Dr.
Anderson
noted
that
he
reviewed
records
from
Lee
and
Associates and North-Central Iowa Mental Health Center as well
as Dr. Rogers’ evaluation.
He noted that he also had a
functional capacity assessment and health records from Manson
Family Health Clinic.
Tr. 306.
Dr. Anderson noted that the
records and Bedford’s own reported symptoms had “dramatically
improved since 2005 on medication. . . .
Some of her
improvement can also be related to the fact of therapy.”
307.
After discussing Bedford’s medical, psychiatric,
5
Tr.
educational and occupational history, Dr. Anderson concluded
as follows:
We have a lady here who’s been sexually
abused and molested.
She presented at
least on one occasion appearing psychotic
and was treated for quite a long time for
psychotic thinking. She was also involved
in therapy and continues therapy now. She
was diagnosed with [Attention Deficit
Hyperactivity
Disorder
(“ADHD”)]
and
continues with that treatment but on mental
status examination still seems to be having
quite a bit of difficulty concentrating.
Tr. 309.
He diagnosed Bedford with the following conditions:
major depression, recurrent; dysthymic disorder; ADHD; post
traumatic
stress
borderline
disorder,
personality
chronic
disorder;
and
and
delayed;
“dealing
probable
with
abuse
issues that are exacerbated by her dependency needs that have
been exacerbated by her abandonment by her husband.” Tr. 309.
Dr. Anderson assessed Bedford with a GAF score of 45.
Tr.
309.
B.
The ALJ Hearing
1.
Bedford’s Testimony
At the May 29, 2007, ALJ hearing, Bedford testified that
she had gained 70 to 80 pounds in the prior two years, and she
attributed the weight gain to her depression.
6
She testified
she lived with her three children, who were 18, 17, and 11
years old.
Tr. 356.
Bedford noted that she worked part time at Pizza Ranch.
She testified that she worked two to two and a half hours a
day, four or five days a week.
Tr. 357.
She was paid $6.40 per hour.
Bedford testified that she could not work full-time
because she got fatigued easily; she worked at a “very slow
pace” and could not keep up with her co-workers.
Tr. 357.
Bedford also testified that she easily lost concentration and
got off task.
Tr. 357.
When asked why she had these
problems, Bedford referred to her depression and the feeling
of not wanting to work and be a good member of society.
She
stated, “[i]f I could just stay holed up in my house on my
couch all day, I would be perfectly happy.
I just have lost
interest in everything and I just don’t want to do anything.”
Tr. 357.
Bedford testified about her prior job as a certified
nursing assistant at Friendship Haven in Fort Dodge. Tr. 358.
She testified that she worked there for three years, but lost
her job on May 3, 2005, because she “took a resident’s credit
card and used it.”
Tr. 358.
7
Bedford testified that she
attributed this behavior to her mental health issues at the
time, stating, “I thought if I dressed better and looked
better that it would bring my husband back.”
Tr. 359.
At her job at Pizza Ranch, Bedford testified that she
generally worked from 10:00 a.m. to noon or 12:30 p.m.
She
was a dishwasher and had no significant interaction with the
public.
Tr. 363.
Bedford testified that she thought she
would have difficulty if she had to interact with the public
in a workplace setting because she was “very flustered” and
“uneasy being around a big group of people. . . .”
Tr. 364.
Bedford testified that, on a typical day when she got home
from work, she sat on her couch.
Tr. 364.
Bedford stated that she did not have friends to go see,
and friends did not come to see her.
She testified that she
did not interact with people very well and it was “really
hard” for her to make friends.
Tr. 365.
Bedford testified
there was a time that she had a lot of friends, but she no
longer had a desire to go anywhere or do anything.
Tr. 365.
She testified this started around the time that her husband
left.
Tr. 365.
8
Bedford testified that her kids took care of most of the
cooking
and
cleaning
in
the
house,
although
she
would
occasionally make supper. She dusted once in a while, but her
kids did the vacuuming, sweeping, and laundry.
Tr. 366.
Bedford further testified that she had problems with her
memory and concentration.
One example involved her driving,
during which she would forget where she was.
Tr. 368.
Another example was when her kids would talk to her and she
did not even hear them.
Tr. 368.
She testified that she was
able to keep track of her appointments because she wrote them
in a book.
2.
Vocational Expert’s Testimony
At the ALJ hearing, in response to a hypothetical similar
to the ALJ’s residual functional capacity finding in this
case, the VE testified that the individual would not be able
to perform past relevant work.
Tr. 374.
The VE testified
that someone with the same age, education, and work experience
as Bedford could perform work as a kitchen helper, day worker
in domestic service (i.e. maid and housekeeping cleaners), and
cleaner/housekeeping in lodging facilities.
9
Tr. 374.
The ALJ provided the VE with a second hypothetical in
which an individual had the same limitations as the first
hypothetical, but the individual was unable to sustain an
eight-hour workday.
The ALJ testified that the hypothetical
individual would not be able to perform any job on a full-time
competitive basis.
C.
Tr. 375.
The ALJ’s Decision
The ALJ uses a five-step sequential analysis to determine
whether a claimant is disabled.
416.920.
A claimant must prove:
20 C.F.R. §§ 404.1520,
(1) that he has not engaged
in substantial gainful activity; (2) that he has a medically
determinable severe impairment, as that term is defined in the
regulations; and either (3) that his impairment meets or
equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is presumed to be disabled,
and no further analysis is needed); or (4) that his impairment
prevents him from performing his past relevant work.
20
C.F.R. § 404.1520. If the claimant carries his burden to this
point, then the burden shifts to the Commissioner to prove
there are other jobs the claimant can perform.
Gonzales v.
Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); Johnson v.
10
Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004).
In this case, the ALJ determined at step one that Bedford
had not engaged in substantial gainful activity since May 1,
2005, Bedford’s alleged onset date.
Tr. 26.
At step two, the ALJ determined that Bedford had the
following severe combination of impairments: major depressive
disorder, recurrent, moderate; anxiety disorder, not otherwise
specified, attention deficit hyperactivity disorder as well as
borderline and depressive personality.
Tr. 26.
At step three, the ALJ found that Bedford did not have an
impairment or combination of impairments that met or medically
equaled a listed impairment in 20 C.F.R. Part 404, Subpart P,
Appendix 1.
Tr. 27.
restriction
of
The ALJ determined Bedford had moderate
daily
activities,
moderate
difficulties
maintaining concentration, persistence and pace, moderate
restriction
of
decompensation.
social
functioning,
and
no
periods
of
Tr. 27.
The ALJ assessed Bedford with the following residual
functional capacity:
to perform simple routine tasks which
require occasional changes in the routine
work
setting,
occasional
independent
decisions and occasional interaction with
11
the
general
supervisors.
Tr. 30.
public,
co-workers
and
In arriving at this conclusion, the ALJ gave “some
weight”
to
the
opinions
of
examining
consultative
psychiatrists Dr. Rogers and Dr. Anderson “to the extent that
[Bedford]
would
likely
experience
variability
with
concentration, persistence and pace, difficulty with social
interaction and adjusting to change in the workplace which
would not exceed a moderate level of limitation.”
Tr. 30.
The ALJ, however, gave “significant weight” to the opinions of
the State agency medical physicians and consultants, finding
the
objective
and
subjective
evidence
supported
their
opinions. Additionally, the ALJ noted that subsequent records
failed to show Bedford’s condition deteriorated.
In evaluating the credibility of Bedford’s statements
regarding her symptoms, the ALJ noted that the record revealed
Bedford’s “psychosocial stressors, marital discord and parentchild
relationships
symptoms.”
Tr. 31.
were
the
primary
sources
impacting
The ALJ noted, however, that Bedford had
significant improvement with therapy and medications with
minimal
side
effects.
Tr.
31.
Additionally,
the
ALJ
determined that “[d]espite symptoms, [Bedford] was capable of
12
maintaining a household, working part-time and taking college
level courses.”
Bedford’s
Tr. 31.
testimony
of
Finally, the ALJ determined that
excessive
ongoing
fatigue
due
to
medication was not supported by the record, and the ALJ raised
the “question of secondary gain in reference to statements
made regarding public assistance.”
Tr. 31.
Thus, the ALJ
found Bedford’s “medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but
that
[Bedford’s]
statements
concerning
the
intensity,
persistence and limiting effects of these symptoms are not
entirely credible.”
Tr. 31.
After making his residual functional capacity finding,
the ALJ determined at step four that Bedford was unable to
perform her past relevant work as a nurse assistant, home
attendant and assembly room supervisor.
Tr. 32.
At step
five, the ALJ determined there were jobs that existed in
significant numbers in the national economy that Bedford could
perform as described by the VE during the course of the VE’s
testimony.
These unskilled jobs included kitchen helper,
domestic services day worker, and cleaner/housekeeping.
33.
Thus, the ALJ determined Bedford was not disabled.
13
Tr.
After the ALJ issued his decision on October 15, 2007,
the Appeals Council denied Bedford’s request for review on
November 4, 2009.
instant action.
Tr. 4-6.
Bedford subsequently filed the
This Court heard oral arguments and is now
prepared to rule on the matter.
II. LAW AND ANALYSIS
In
reviewing
determine
whether
this
case,
this
Court
the
ALJ’s
findings
is
are
substantial evidence on the record as a whole.
required
to
supported
by
See 42 U.S.C.
§ 405(g); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002).
Substantial evidence is less than a preponderance of
the evidence, but it is enough that a reasonable mind would
find it adequate to support the ALJ’s decision.
See Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as
there is substantial evidence in the record that supports the
ALJ’s decision, the Court may not reverse it simply because
substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have
decided the case differently.
See Haley v. Massanari, 258
F.3d 742, 747 (8th Cir. 2001).
If, after reviewing the
record, it is possible to draw two inconsistent positions from
14
the
evidence
and
one
of
those
positions
represents
the
findings of the ALJ, the decision of the ALJ must be affirmed.
See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
Still, in reviewing the record this Court must remain mindful
of the ALJ’s “duty to develop the record fully and fairly” in
the
non-adversarial
Barnhart,
360
F.3d
administrative
proceeding.
834,
Cir.
838
(8th
2004);
Snead
v.
Stormo
v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
In this case, the ALJ’s decision that Bedford is not
disabled is not supported by substantial evidence on the
record
as
functional
a
whole.
capacity
Specifically,
findings
as
the
to
ALJ’s
Bedford’s
residual
mental
limitations are not supported by substantial evidence; thus,
the ALJ’s conclusion at step five that jobs existed in the
national economy that Bedford could perform is incorrect.
The ALJ concluded Bedford had the residual functional
capacity
“to
perform
simple
routine
tasks
which
require
occasional changes in the routine work setting, occasional
independent decisions and occasional interaction with the
general public, co-workers and supervisors.”
Tr. 30.
As
mentioned, the ALJ gave “significant” weight to the opinions
15
of the State agency medical physicians and consultants, and
only “some” weight to the opinions of Dr. Rogers and Dr.
Anderson, who personally examined Bedford.
Even in affording
“some” weight to their opinions, the ALJ’s residual functional
capacity findings are not supported by substantial evidence.
Dr. Rogers concluded Bedford had “very poor” pace and was
unable to maintain concentration.
Tr. 183.
He concluded
Bedford was “not able to carry out instructions reliably.”
Tr. 183.
Dr. Rogers further concluded Bedford could not
“interact appropriately with supervisors, coworkers, or the
public for more than brief periods of time” and that it would
be difficult for her to adjust to workplace changes. Tr. 183.
This finding, of course, is not consistent with the ALJ’s
residual functional capacity finding that Bedford could make
“occasional”
changes
and
occasionally
interact
with
the
public, co-workers, and supervisors.
Additionally, Dr. Anderson, who examined Bedford just
prior to the ALJ hearing, recognized Bedford had improved
some, but nevertheless assessed her with a GAF score of 45.
He attributed her problems primarily to her past sexual abuse,
also noting she had ADHD, post traumatic stress disorder, and
16
major depression.
He recognized Bedford’s symptoms were
exacerbated by dependency issues and the abandonment by her
husband.
Tr. 309.
There is no indication that either Dr. Anderson or Dr.
Rogers opined Bedford could work full-time, especially given
Dr. Anderson’s grim assessment of her condition and her GAF
score of 45. Both Dr. Rogers’ and Dr. Anderson’s opinions are
supported
in
Bedford’s
Anderson,
who
examined
Bedford’s
treatment
extensive
Bedford
records
in
with
treatment
May
record.
2007,
respect
to
had
her
Dr.
all
of
mental
condition; thus, his opinion was fully informed and supported
in the record.
This Court reviewed the record and was unable to find a
treating or examining source who suggested Bedford was capable
of returning to full-time work.
In her brief, Bedford cites
to her history of GAF scores to illustrate the ongoing nature
of her impairments.
While her GAF scores ranged from 45-55,
they often returned to 50.
See Pl. Br. 6.
The Court is
persuaded Bedford’s GAF scores simply illustrate her lack of
overall improvement for years after she stopped working, and
further support her argument that she was unable to return to
17
full-time work.
See Pate-Fires v. Astrue, 564 F.3d 935, 944
(8th Cir. 2009) (“The history of GAF scores at 50 or below,
taken
as
a
whole,
indicate
[the
claimant]
has
‘serious
symptoms ... or any serious impairment in social, occupational
or school functioning....’”) (citing Brueggemann v. Barnhart,
348 F.3d 689, 695 (8th Cir. 2003) (“noting a GAF score of 50
reflects a serious limitation on a claimant’s ability to
perform basic life tasks; VE testified that an individual with
a GAF score of 50 could not work.”)).
With this in mind, the government argues that Bedford’s
work, school, and family activities are inconsistent with her
allegation that she is disabled. Specifically, Bedford worked
part-time at Pizza Ranch, received her GED, attended college
courses, and had three children for whom she was responsible
raising. A closer review of the record, however, reveals that
Bedford had great difficulty raising, controlling, and getting
along with her children.
Additionally, while Bedford was
often excited about taking college courses, there is nothing
to suggest this venture was successful in any meaningful way,
as there is no evidence of her attendance record or grades.
Finally, Bedford’s part-time work at Pizza Ranch involved
18
washing dishes two to two and a half hours per day, and nearly
no interaction with the public.
This work experience is
nominal and is no indication Bedford was capable of performing
work for eight hours a day, five days a week.
The government further argues that Bedford’s depression
was merely situational with respect to her criminal charges
and problems with her husband, family, and finances.
The
record, however, reveals that she was depressed about nearly
all situations in her life.
Bedford clearly had a breakdown
in May 2005, as it appeared her life was falling apart, and
there is no indication she ever recovered or improved to the
point
that
she
was
able
to
return
to
full-time
work.
Bedford’s GAF scores, treatment notes, and Dr. Rogers’ and Dr.
Anderson’s evaluations as a whole support this conclusion.
Moreover,
any
argument
that
her
depression
recently
started as a result of one situation or another is not
supported in the record.
treatment
notes
reveal
Bedford’s medical records and
that
she
often
referred
childhood for the reasons her depression started.
to
her
She was
sexually abused by both her father and brother at a young age.
Her father is also serving a life sentence for murder.
19
Dr.
Anderson
findings.
even
refers
to
her
past
abuse
in
his
summary
Thus, while Bedford’s struggles with her criminal
charges, her husband, and her finances clearly sent her over
the edge in May 2005, her depression started long ago and
eventually manifested itself to the point that Bedford was
unable to work.
She may, one day, be capable of returning to
the competitive work force, but the record does not indicate
that will happen soon.
The government similarly points out that Bedford’s fulltime employment ended not because of her depression, but
rather because she stole a resident’s credit card while
working as a nurse assistant. The Court acknowledges this and
also concludes Bedford is no saint.
However, she was clearly
not of sound mind when she committed this offense.
She
testified that she stole the credit card because she wanted to
buy nicer clothes to entice her husband to return to her.
Something was clearly wrong with her mental state to have that
kind of logic and judgment, and she acknowledged this, even
stating her depression may have contributed to the theft.
20
Because the Court is persuaded the record overwhelmingly
supports a finding that Bedford was unable to perform fulltime work, the ALJ erred by concluding at step five that jobs
existed in the national economy that Bedford could perform.
Under Social Security Ruling (SSR) 96-8p, a person’s residual
functional capacity must be evaluated based on work performed
on a regular and continuing basis, which means eight hours a
day for five days a week or an equivalent work schedule.
The
Commissioner’s
the
position
is
that,
“at
step
five
of
disability determination, ‘only an ability [on the part of the
claimant] to do full-time work will permit the ALJ to render
a decision of not disabled.’”
359 (8th Cir. 2000).
Bladow v. Apfel, 205 F.3d 356,
Additionally, as mentioned, the VE
testified that an individual who was unable to sustain an
eight-hour work day would be unable to perform any job on a
full-time competitive basis.
Even
assuming
the
Tr. 375.
average
employer
in
the
national
economy would hire Bedford, the Court is persuaded she would
suffer the same disabling limitations and would not be able to
keep a job for any significant period of time.
To determine
at step five whether a claimant can perform other jobs in the
21
national economy, the Secretary must consider whether the
claimant can actually find and hold a job in the real world.
Parsons v. Heckler, 739 F.2d 1334, 1340 (8th Cir. 1984).
No
reasonable employer in the national economy would tolerate
Bedford for any significant period of time.
due to her disabling depression.
This is no doubt
The record as a whole does
not support any conclusion that Bedford is employable in the
national economy.
The record as a whole overwhelmingly
supports a finding of disability.
III.
CONCLUSION
For the reasons stated herein, the Court is persuaded
that substantial evidence on the record does not support the
ALJ’s finding that Bedford is not disabled.
Substantial
evidence reveals that there are no jobs in the national
economy she could perform given her mental impairments.
The
Court is further persuaded that there is no need to remand to
the Commissioner to take additional evidence.
The record
contains sufficient evidence to allow the Court to render this
decision.
IT IS THEREFORE HEREBY ORDERED, pursuant to sentence four
of 42 U.S.C. § 405(g), that the decision of the ALJ is
22
reversed, and the Commissioner is directed to compute and
award disability benefits to Bedford with an onset date of May
16, 2007.
A timely application for attorney fees pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), must
be filed within thirty (30) days of the entry of final
judgment in this action.
Thus, if this decision is not
appealed, and Bedford’s attorney wishes to apply for EAJA
fees, he must do so within 30 days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 19th day of April, 2011.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
23
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