Metalski v. SSA
MEMORANDUM OPINION & ORDER: 1) Dft's motion for s/j 9 is GRANTED; 2) Pla's motion for s/j 8 is DENIED; 3) Adm decision will be AFFIRMED by a separate jgm entered this date. Signed by Judge Danny C. Reeves on 3/7/17.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NANCY A. BERRYHILL, *
Acting Commissioner of Social Security,
Civil Action No. 6: 16-51-DCR
This matter is pending for consideration of cross-motions for summary judgment filed
by the parties.
[Record Nos. 8 and 9]
Plaintiff Regina Metalski contends that the
administrative law judge (“ALJ”) assigned to her case erred by denying her claims for
supplemental security income benefits (“SSI”). She requests that the Defendant’s decision be
reversed and that she be found totally and permanently disabled. In the alternative, Metalski
requests that her case be remanded for a rehearing to address the alleged errors. Nancy A.
Berryhill, Acting Commissioner of Social Security, contends that the ALJ’s decision is
supported by substantial evidence and should be affirmed.
For the reasons discussed below, the Court will grant the Commissioner’s motion
[Record No. 9] and deny the relief sought by Metalski [Record No. 8].
As of January 23, 2017, Nance A. Berryhill is the Acting Commissioner of Social
Security, and is substituted as the defendant in this action pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure.
On March 19, 2013, Metalski filed an application for SSI under Title XVI of the Social
Security Act (“the Act”), alleging a disability beginning on March 1, 2008.1
Administrative Transcript, “Tr.,” at 131-34.] The Social Security Administration (“SSA”)
denied her application initially and upon reconsideration. [Tr. at 63, 78] Metalski pursued
and exhausted her administrative remedies with a hearing before the ALJ [Tr. at 29], a written
decision from the ALJ [Tr. at 8], and review by the Appeals Council [Tr. at 1]. Her case is
now ripe for review pursuant to 42 U.S.C. § 1383(c)(3).
Metalski was 39 years-old at the time of the ALJ’s decision. [Tr. at 22] Metalski claims
to having completed the twelfth grade and attending cosmetology school for three years. [Tr.
at 150, 163] At other times, however, she reported only a ninth-grade education. [Tr. at 34]
Metalski claims to having worked as a manager at Dunkin Donuts, as an assistant manager and
cashier at Rite Aid, at a deli, and cleaning houses. [Tr. at 36, 150, 169, 607] She quit working
in 2007 around the time she was recommended for back surgery. Metalski never returned to
work. [Tr. at 14, 162] Metalski contends that she is unable to work because of back problems,
pinched nerves, carpal tunnel, and depression. [Tr. at 162]
Dr. David Winkle, a state agency consultant, examined Metalski in May 2013. [Tr. at
454-60] Dr. Winkle observed that Metalski had no apparent gait disturbance, and that she had
normal strength in her upper and lower extremities. [Tr. at 457] Winkle noted a history of
carpal tunnel in her left side, which may cause impairment of repetitive griping and grasping.
[Id.] Winkle cited a 2009 MRI which revealed a pinched nerve at L4-L5 and bulging disc at
A previous application for benefits was denied on June 20, 2008, and is considered
final. [Tr. at 11]
that level. [Tr. at 455] He noted a diagnosis of back pain secondary to degenerative disease,
and bilateral neuropathy related to degenerative disc disease. [Tr. at 457] As a result of her
back pain, Winkle noted that heavy lifting, bending, and stooping may be difficult, but that
Metalski should be able to lift and handle 30 pounds occasionally and 15 pounds more
frequently. [Id.] He found that prolonged standing and prolonged sitting would be difficult,
with a need to change positions every 30 minutes, and that she should be able to stand and
walk for at least 4 hours in an 8-hour day. [Id.] Winkle also noted Metalski’s mental status as
normal, her mood and affect were appropriate, and she related normally to the examiner. [Tr.
Brian McLean, M.S., L.P.P., a state agency consultant, performed a psychological
evaluation of Metalski in June 2013. [Tr. at 461-66] McLean found that Metalski’s fund of
knowledge was low, but that she evidenced concrete thinking. [Tr. at 464] He further found
that Metalski’s judgment, when testing for a hypothetical situation, and reality testing, was
adequate. [Id.] However, McLean indicated that Metalski had gaps of insight and her decision
making was confused. [Id.] He also noted her reports of paranoia, with statements that she
often hears voices that bad things will happen. [Id.]
McLean conducted a Wechsler Adult Intelligence Test, and concluded that Metalski
had a full-scale IQ score of 44, reflecting a very low range of functioning. [Id.] McLean noted
Metalski’s GAF score to be 42. [Tr. at 465] As a result, he found marked impairment of the
claimant’s capacity to understand, remember, and carry out instructions for simple repetitive
tasks; marked impairment of her ability to tolerate stress and pressure of day-to-day
employment; marked impairment of her ability to sustain attention and concentration towards
performance of simple repetitive tasks; and marked impairment of her ability to respond
appropriately to supervision, coworkers, and the pressure of a work setting. [Tr. at 465-66]
State agency psychologist Dr. Mary Thompson, Ph.D., reviewed Metalski’s medical
records in August 2013 and determined that the claimant did not suffer from a medicallydeterminable mental impairment. [Tr. at 58] Thompson found the earlier-reported findings to
be contradicted by Metalski’s work history, social media activities, and demonstrated
independent ability to carry out daily tasks, such as use of an EBT card, completing purchases,
and use of detailed language. [Id.] Based on other available evidence, Thompson concluded
that Metalski gave poor effort during her psychological evaluation, and that the report of her
functioning was feigned. [Id.]
In October 2013, state agency psychologist Dr. Lea Perritt, Ph.D., reached a similar
conclusion in reviewing Metalski’s file. [Tr. at 73] Perritt found that Metalski’s presentation
at her examination is contradicted by many other factors, including the CDI investigation, work
history and adaptive skills over time, and educational attainment. [Id.] Perritt likewise found
that Metalski has no medically determinable mental impairment.
Metalski’s was referred to Edward Lovelace, M.S., by her attorney for an additional
psychological evaluation in October 2014. [Tr. at 596] Lovelace reported a full-scale I.Q.
score of 52, again placing the claimant in the extremely low range of functioning. [Tr. at 598]
In reaching this conclusion, Lovelace noted significant difficulties with verbal and nonverbal
concept formations, a limited long-term memory, and difficulty drawing upon past experiences
in reaching solutions to current problems. [Tr. at 599] Lovelace also recorded Metalski’s
statement that she has never been employed for more than two months, with her previous
employment including stocking shelves at a pharmacy and cleaning houses. [Tr. at 597]
ALJ Tommye Mangus determined that Metalski had the following severe impairments
after reviewing the record and considering the testimony presented at the administrative
hearing: severe degenerative conditions of the lumbar spine, possible carpal tunnel syndrome,
post-traumatic stress disorder (“PTSD”), depression, and likely borderline intellectual
functioning. [Tr. at 17] Notwithstanding these impairments, the ALJ determined that Metalski
had the residual functional capacity (“RFC”) to perform medium work, except that she could
perform no more than frequent left handling or fingering. [Tr. at 20] With respect to mental
limitations, the ALJ found that Metalski could understand, remember, and carry out simple
instructions and tasks; tolerate occasional, casual contact with coworkers, supervisors, and the
public; and adapt to occasional, gradually introduced changes. [Id.]
The ALJ determined that there were jobs existing in significant numbers in the national
economy that Metalski could perform, including industrial cleaner, laborer, and dining room
attendant. [Tr. at 23] Accordingly, the ALJ concluded that Metalski was not disabled from
March 19, 2013 (the date her application was filed), through May 19, 2015 (the date of the
decision). [Tr. at 23-24]
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity’ because of a medically determinable physical or mental
impairment of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d
532, 539 (6th Cir. 2007) (citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social Security
disability determination is made by an ALJ in accordance with “a five-step ‘sequential
evaluation process.’” Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en
banc) (quoting 20 C.F.R. § 404.1520(a)(4)). If the claimant satisfies the first four steps of the
process, the burden shifts to the Commissioner with respect to the fifth step. See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that she is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 416.920(b). Second, the
claimant must show that she suffers from a severe impairment or a combination of
impairments. 20 C.F.R. § 416.1520(c). Third, if the claimant is not engaged in substantial
gainful employment and has a severe impairment which is expected to last for at least twelve
months and which meets or equals a listed impairment, she will be considered disabled without
regard to age, education, and work experience. 20 C.F.R. § 416.920(d). Fourth, if the claimant
has a severe impairment but the Commissioner cannot make a determination of the disability
based on medical evaluations and current work activity, the Commissioner will review the
claimant’s residual functional activity (“RFC”) and relevant past work to determine whether
she can perform her past work. If she can, she is not disabled. 20 C.F.R. § 416.920(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent her from
doing past work, the Commissioner will consider her RFC, age, education, and past work
experience to determine whether she can perform other work. If she cannot perform other
work, the Commissioner will find the claimant disabled. 20 C.F.R. § 404.416.920(g). “The
Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
A court reviewing a denial of Social Security benefits must only determine whether the
ALJ’s findings were supported by substantial evidence and whether the correct legal standards
were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).
The ALJ did not err in weighing and rejecting the consultative examiners’
The claimant alleges the ALJ improperly rejected consultative examiners’ and treating
medical source opinions. “The Social Security Administration defines three types of medical
sources: non-examining sources, non-treating (but examining) sources, and treating sources.”
Reeves v. Comm'r of Soc. Sec., 618 F. App'x 267, 273 (6th Cir. 2015) (citing 20 C.F.R. §
404.1502). Here, the ALJ considered only the latter two categories because Metalski had no
treating source opinions. [Tr. at 22] In the absence of treating source opinions, examining
source opinions are generally given greater weight than non-examining source opinions. See
20 C.F.R. § 416.927. ALJ’s have more discretion in considering non-treating source opinions.
Notably, they need not give reasons for discounting non-treating source opinions. See Martin
v. Comm'r of Soc. Sec., 658 F. App'x 255, 259 (6th Cir. 2016) (“But because Dr. Rutledge and
Dr. Joslin are non-treating sources, the reasons-giving requirement is inapplicable to their
opinions.”); see also Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (“[T]he
SSA requires ALJs to give reasons for only treating sources.”); Reeves, 618 Fed. App’x at 273
The ALJ gave greater weight to non-examining source opinions, discounting
examining source opinions, as is permissible. He also provided reasons for this determination.
Because the objective evidence supports the ALJ’s weighing of the evidence and opinions, he
did not err as a matter of law.
The ALJ gave no weight to agency consultative examiner Dr. Winkle’s opinion that,
because of Metalski’s back problems, “heavy lifting, bending, and stooping may be difficult,”
“but she should be able to lift and handle 30 pounds occasionally and 15 pounds more
frequently.” [Tr. at 20] He also rejecting the opinion that Metalski could stand and walk at
least 4 hours in an 8-hour day, and that she should avoid unprotected heights “[due to] her
neuropathy.” [Id.] The ALJ found the claimant’s CT and MRI scan “demonstrate only minor
degenerative lumbar changes,” and that “neurological examination findings are negative.”
[Id.] Further, he noted Winkle’s “essentially normal examination findings,” and found the
neuropathy diagnosis to be based only on Metalski’s statements. [Tr. at 20-21, 14] The ALJ
credited Winkle’s left Phalen’s findings as the basis for his left hand manipulative limitations.
[Tr. at 22] However, he found Winkle’s opinions on other limitations to be “based on
claimant’s report of symptoms” and “simply not supported by the medical evidence as a
The ALJ’s rejection of Dr. Winkle’s and the other examiners’ opinions was largely due
their reliance on Metalski’s statements. The ALJ gave numerous reasons for doubting
Metalski’s credibility and for finding that the results of the IQ tests were feigned. This
credibility determination was based on substantial record evidence, including treatment notes
from Metalski’s numerous emergency room visits, follow-up appointments thereafter, and a
pattern of inconsistent statements.
For example, in September 2013 Metalski saw
neurosurgeon Magdy El-Kalliny for reported severe lower back pain. [Tr. at 14] But
examination results were “entirely normal” except for sacroiliac tenderness and an MRI
revealing two “tiny” disc bulges. [Id.] El-Kalliny proscribed Robaxin, physical therapy, and
injections. [Id.] Metalski never followed-up, but visited the ER the next day for complaints
of “back pain down both legs and tingling.” [Id.] She mentioned seeing El-Kalliny, but said
that he refused to prescribe her pain medication when she refused injections. [Tr. at 14-15,
Examination results were again normal, and Metalski was reported as having no trouble
getting up out of a chair. [Tr. at 15] Drug-seeking behavior was noted after Metalski left the
ER without being treated. [Id., Tr. at 485] Such behavior is consistent with 2010 ER records
from Michigan [Tr. at 267-69, 275], and is a proper basis for doubting Metalski’s credibility.
See Jackson v. Comm'r of Soc. Sec., No. 1:14-CV-628, 2015 WL 4611472, at *7 (W.D. Mich.
July 31, 2015) (listing cases) (“With respect to plaintiff's drug seeking behavior, courts have
held that such behavior can form a basis for rejecting a claimant’s testimony regarding pain
and limitations.”); Simila v. Astrue, 573 F.3d 503, 519–20 (7th Cir. 2009) (the ALJ could
properly reject plaintiff's credibility based on drug-seeking behavior); Massey v.
Commissioner Social Security Administration, 400 Fed. App’x 192, 194 (9th Cir. 2010) (“the
ALJ's interpretation that [the claimant] is engaged in drug-seeking behavior is a clear and
convincing reason for disregarding [their] testimony”).
In 2006 Metalski was discharged for one physician’s practice after he discovered that
she was seeing multiple doctors for pain pill treatment. [Tr. at 14] Seeing numerous doctors
for this reason is also a basis for doubting credibility. See Berger v. Astrue, 516 F.3d 539, 546
(7th Cir. 2008). Further, “[a] claimant’s misuse of medications is a valid factor in an ALJ’s
credibility determinations.” Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003).
During a January 2014 medical visit for reports of lower back pain, Metalski was
administered a urine test which was positive for seven narcotic substances. [Tr. at 15] This
occurred despite Metalski’s claim that she was not taking the subject medications. [Id.]
Metalski did not return for treatment when confronted with the positive drug screening. [Id.]
This evidence is a strong reason for doubting Metalski’s credibility. See Poppa v. Astrue, 569
F.3d 1167, 1172 (10th Cir. 2009) (“there is sufficient evidence in the record to support the
ALJ's determination that [the claimant’s] credibility about her pain and limitations was
compromised by her drug-seeking behavior”)
There is other evidence that casts doubt on Metalski’s credibility. In 2013, Metalski
was observed in public at a volunteer event helping build a shelter. [Tr. at 149] When
approached by investigators, Metalski was comfortable answering their questions. [Tr.at 151]
She removed her sweatshirt over her head without any apparent pain or difficulty. [Id.]
Metalski told the examiners that she had graduated from high school, spent three years in
cosmetology school at Wayne State University, and had worked as a manager at a Dunkin
Donuts restaurant for five years. [Tr. at 150] Further, investigators found evidence that
Metalski regularly shopped on her own (although one witness reported that she often appeared
under the influence or drugs or alcohol), and noted her activities on social media. [Tr. at 152,
148] These observed and documented behaviors contradict the information Metalski provided
to agency and retained examiners, and undermine the reports issued by those individuals.
For example, Adanta treatment notes state she was a manager at a Dunkin Donuts
restaurant and Rite Aid business in Michigan, but claim she only achieved a 9th grade
education, and had obtained a GED. [Tr. at 569] Other Adanta documents show Metalski
reporting an 11th grade education, but no GED. [Tr. at 575] Dr. Coffey’s treatment notes
from January 2014 show she was a store manager at a Dunkin Donuts location for three years
and an assistant manager at Rite Aid for one year. [Tr. at 607] However, Metalski told
psychological examiner Lovelace in October 2014 that her employment history consisted only
of stocking shelves at a pharmacy and cleaning houses, and that she was never employed longer
than two months. [Tr. at 597] This record of inconsistent statements concerning a material
fact (i.e., the claimant’s past employment and educational attainment), weighs heavily in favor
of doubting claimant’s credibility. Further, “[a]n ALJ's findings based on the credibility of the
applicant are accorded great weight and deference, particularly since an ALJ is charged with
the duty of observing a witness’s demeanor and credibility.” Walters v. Comm'r of Soc. Sec.,
127 F.3d 525, 531 (6th Cir. 1997).
The ALJ also properly discounted state agency consultant Brian McLean’s
psychological evaluation as not supported by the record as a whole. McLean conducted a
Wechsler Adult Intelligence Test, and found Metalski to have a full-scale IQ score of 44,
reflecting a very low range of functioning. [Tr. at 464] He noted her reports of paranoia, with
statements that she often hears voices, indicating that bad things will happen. [Tr. at 464] The
ALJ found that the overall weight of the medical evidence did not support these findings. [Tr.
at 21] He referenced the Adanta treatment notes, which specifically estimated an average
intellect, and mentioned the lack of reports of hallucinations anywhere in the Adanta treatment
notes. [Id.] The ALJ, however, credited McLean’s assessment as supported by other evidence
regarding panic disorder and abuse history. [Tr. at 22]
The ALJ noted Metalski’s “tendency to exaggerate or minimize at will” in connection
with his evaluation of the psychological evaluation of Edward Lovelace.
[Tr. at 17]
Specifically, Metalski told Lovelace that she has never been employed for more than two
months, with her previous employment including stocking shelves at a pharmacy and cleaning
houses. [Tr. at 597] The ALJ pointed out that Metalski’s reports to Lovelace of “intense fear,
nausea, sweating, accelerated heart rate, smothering, chest pain, and paresthesia two times a
week” were much more severe than what was reported to Adanta. [Tr. at 17] The ALJ noted
that Metalski had not been to an emergency room for an anxiety attack, and her depressive
symptoms reported to Lovelace did not reflect those reported to Adanta. [Id.]
In rejecting McLean and Lovelace’s IQ evaluations, the ALJ referenced Metalski’s own
testimony that she passed a written test for a driver’s license and had management work
experience. [Tr. at 18] Further, there was no record of special education classes, and the
record as a whole supports that Metalski graduated high school, attended cosmetology school,
and was active on social media. [Id.]
The ALJ’s credibility determinations must be reasonable and supported by substantial
evidence. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th Cir. 2007). Further, the ALJ
must provide “specific reasons for the finding on credibility, supported by the evidence in the
case record.” Id. Here, the ALJ’s discussion of Metalski’s credibility is sufficiently specific
to make clear to Metalski and to any subsequent reviewers the weight the ALJ gave to her
statements and the reasons for the weight given.
Id. at 248.
The ALJ’s credibility
determination is supported by substantial evidence, and that determination, along Metalski’s
treatment records, provide a firm foundation for rejecting the non-treating examiners’
opinions. In short, the ALJ did not err in weighing and rejecting the agency and retained
medical examiners’ opinions.
The ALJ’s decision is supported by substantial evidence.
Metalski claims that she is entitled to benefits under Listing of Impairment 12.04
Affective Disorder and/or 12.05 Mental Retardation. She alleges meeting four of the 12.04(A)
requirements, and two of the 12.04(B) requirements. The claimant notes GAF scores for the
foundation of 12.04(B)(1), “marked restriction of activities of daily living,” and cites her
abnormal work history as a basis for meeting 12.04(B)(4), “repeated episodes of
decompensation, each of extended duration.”
While Metalski’s GAF scores are some evidence of mental deficits that render her
disabled, they are not determinative. See Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 877 (6th
Cir. 2007). GAF scores represent the examiner’s judgment of the individual’s overall level of
Here, the basis for discounting McLean and Lovelace’s evaluations are
sufficiently stated. Further, Metalski interviewed that she is responding well to the Adanta
treatment [Tr. at 22], and evidence of Metalski’s social activities do not support marked
restriction of activities of daily living. Contrary to claimant’s assertion, decompensation is a
medical term unrelated to payment for wages and services. See Rabbers v. Comm'r Soc. Sec.
Admin., 582 F.3d 647, 659 (6th Cir. 2009) (defining “episodes of decompensation). There is
no record evidence of repeated periods of decompensation of extended durations, rendering a
claim to the 12.04(B)(4) prong unfounded. The finding that Metalski’s impairments do not
meet or equivalent listing 12.04 is supported by substantial evidence.
To meet the requirement of listing 12.05(B), a claimant must “establish manifestation
of deficits in adaptive functioning prior to the age of 22 and a valid verbal, performance, or
full scale I.Q. score of 59 or less.” Dragon v. Comm'r of Soc. Sec., 470 F. App'x 454, 460 n.1
(6th Cir. 2012) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(B)). While McLean and
Lovelace both reported full scale IQ scores of less than 59, the ALJ discounted these opinions
for good and valid reasons. And regardless of whether Metalski met one of Listing 12.05’s
severity prongs, see Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001), she failed to meet the
diagnostic description of having the deficit in adaptive functioning manifest itself in the
developmental period. Id.
The Detroit School System has no record of Metalski being enrolled in special
[Tr. at 469]
Metalski reported spending three years enrolled in a
cosmetology program, and she passed a written driver’s license exam. [Tr. at 150, 35] Further,
she reported being a manager at Rite Aid for two years and at Dunkin Donuts for four years.
[Tr. at 569, 607] Not only did Metalski fail to provide any evidence to meet the diagnostic
description, but ample record evidence exists to refute such a classification. The finding that
Metalski’s impairments do not meet or equivalent listing 12.05 is supported by substantial
evidence. See McDonald v. Sec'y of Health & Human Servs., 786 F.2d 1165, 1986 WL 16598,
at *5 (6th Cir. 1986) (unpublished table opinion) (“[T]he Secretary properly considered
claimant’s academic success, occupational success, independent living, and ability to care for
herself as evidence that the 66 IQ test result was not representative of claimant's intelligence.”).
Finally, the ALJ acknowledged Metalski’s degenerative disc disease, the existence of
which is supported by the record. [Tr. at 13] However, the ALJ discounted the severity of
pain and its effects on her functioning, the allegations of which are not supported by the record.
[Tr. at 22] While seeking medication for her back pain, Metalski refused epidural injections.
[Tr. at 481] Further, she was found at an event assisting with building a shelter. [Tr. at 14950] The ALJ did not err in finding that Metalski’s subjective allegations of pain were
inconsistent with her underlying condition. See Gronda v. Sec'y of Health & Human Servs.,
856 F.2d 36, 39 (6th Cir. 1988). Accordingly, for the reasons outlined above, it is hereby
ORDERED as follows:
Defendant Nancy A. Berryhill’s Motion for Summary Judgment [Record No. 9]
Plaintiff Regina Metalski’s Motion for Summary Judgment [Record No. 8] is
The administrative decision will be AFFIRMED by a separate judgment
entered this date.
This 7th day of March, 2017.
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