BRILL v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
17
REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 10/23/2018 By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BENJAMIN B.,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant
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No. 1:17-cv-00423-DBH
REPORT AND RECOMMENDED DECISION1
This Social Security Disability (“SSD”) appeal raises the question of whether the
administrative law judge (“ALJ”) supportably found that, absent substance abuse, the plaintiff had
no severe impairment or combination of impairments. The plaintiff seeks remand on the bases
that the ALJ erroneously evaluated both the opinion evidence of record and his testimony
regarding his symptoms and limitations. See Itemized Statement of Specific Errors (“Statement
of Errors”) (ECF No. 13) at 1. I find no error and, accordingly, recommend that the court affirm
the commissioner’s decision.
This case returns to this court following a November 6, 2015, judgment and order vacating
an unfavorable December 17, 2013, decision issued by the ALJ after an October 16, 2013, hearing
during which the plaintiff, his mother, impartial psychological expert Ira H. Hymoff, Ph.D., and a
vocational expert testified. See Record at 438. Post-remand, the ALJ held an April 22, 2016,
1
This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which he
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me pursuant
to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions with citations
to relevant statutes, regulations, case authority, and page references to the administrative record.
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supplemental hearing during which the plaintiff, Dr. Hymoff, and a vocational expert testified.
See id. at 439.
The ALJ issued a decision dated May 18, 2016, see id. at 458, in which, pursuant to the
commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Sec’y of
Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), he found, in relevant part, that the plaintiff
met the insured status requirements of the Social Security Act through December 31, 2015, Finding
1, Record at 442; that he had the severe impairments of affective disorder/mood disorder, not
otherwise specified, an anxiety-related disorder/post-traumatic stress disorder, a personality
disorder/borderline personality disorder, and a substance addiction disorder/alcohol dependence,
in partial remission, Finding 3, id.; that his substance use disorder met Listing 12.09 and, by
implication, Listings 12.04, 12.06, and 12.08 of Appendix 1 to Subpart P, 20 C.F.R. § 404 (the
“Listings”), Finding 4, id.; that, if he had stopped his substance use, his remaining impairments
would have had no more than a minimal impact on his ability to perform basic work activities and,
therefore, he would not have had a severe impairment or combination of impairments, Finding 5,
id. at 453-54; and that, because his substance use disorder was a contributing factor material to the
determination of disability, he had not been disabled within the meaning of the Social Security Act
at any time from June 1, 2010, through June 1, 2013, the closed period of disability at issue in this
case, Finding 6, id. at 457.2 The Appeals Council declined to assume jurisdiction of the case
2
The need to determine whether substance use is material to disability stems from a provision of the Contract with
America Advancement Act of 1996 (“Contract with America”) that “eliminated disability benefits where drug
addiction or alcoholism was a contributing factor material to the Commissioner's determination of disability.” Bartley
v. Barnhart, 117 F. App’x 993, 994 (6th Cir. 2004) (citation and internal quotation marks omitted); see also 42 U.S.C.
§ 423(d)(2)(C). That Contract with America directive was incorporated into the commissioner’s regulations, which
provide in relevant part, “The key factor we will examine in determining whether drug addiction or alcoholism is a
contributing factor material to the determination of disability is whether we would still find you disabled if you stopped
using drugs or alcohol.” 20 C.F.R. § 404.1535(b)(1).
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following remand, id. at 428-30, making the decision the final determination of the commissioner,
20 C.F.R. § 404.984(a), (b)(2); Dupuis v. Sec’y of Health & Human Servs., 869 F.2d 622, 623 (1st
Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec’y of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec’y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
I. Discussion
A. The ALJ’s Weighing of Opinion Evidence
1. Background
The ALJ noted that the record contained the opinions of six experts, see Record at 451-53:
Dr. Hymoff at both the 2013 and 2016 hearings, see id. at 68-72, 474-79, agency nonexamining
consultants Robert Maierhofer, Ph.D., and Mary A. Burkhart, Ph.D., in evaluations dated January
20, 2012, and May 30, 3012, respectively, see id. at 80-81, 92-94, treating psychiatrist Fred A.
Bloom, M.D., in a medical source statement dated April 30, 2012, and a letter dated May 15, 2012,
see id. at 695, 697-99, agency nonexamining consultant Russell Phillips, Ph.D., in an evaluation
dated October 23, 2012, see id. at 415, and Robert D. Kahl, Ph.D., in a report of a psychological
evaluation conducted on September 20, 2012, as supplemented by a letter dated April 13, 2016,
see id. at 416-26, 743-44.
The ALJ gave little weight to Dr. Hymoff’s opinion that the plaintiff’s substance use
disorder was not material to a finding of disability, explaining that he found the opinions of Drs.
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Bloom, Maierhofer, and Burkhart “more persuasive given the stark contrast in the [plaintiff]’s
symptoms and daily activities during the periods of sobriety versus periods of relapse.” Id. at 453.
See also id. at 451 (“Although Dr. Hymoff is a practicing psychologist and is thoroughly familiar
with the Social Security disability standard, given Dr. Bloom’s clear assessment regarding the
materiality of the [plaintiff]’s substance use and as evidenced by the depth and breadth of the daily
activity during periods of sobriety, the undersigned has difficulty reconciling Dr. Hymoff’s finding
that the [plaintiff]’s substance use is not material to a finding of disability.”).
The ALJ gave great weight to the opinions of Drs. Maierhofer and Burkhart that, although
the plaintiff’s substance abuse disorder met Listing 12.09, in the absence of substance use, his
remaining mental impairments had no more than a minimal effect on his ability to perform the
basic mental demands of work and, therefore, his substance use disorder was material to the
determination of disability. See id. He noted that Drs. Maierhofer and Burkhart were “thoroughly
familiar with the Social Security Administration disability standard,” including the determination
of whether a claimant’s substance use disorder is material to a finding of disability, and based their
opinions, which were consistent with the evidence of record as a whole, “on a longitudinal review
of the medical evidence of record.” Id. at 451-52.
The ALJ gave “significant weight” to the April 30, 2012, opinion of Dr. Bloom that the
plaintiff’s mental impairments, after a five-month period of sobriety, did not interfere with his
ability to understand, remember, and carry out instructions, interact with others, or respond to
changes in a routine work setting, as well as Dr. Bloom’s May 15, 2012, observation that, with
abstinence, the plaintiff was “not manifesting incapacitating anxiety . . . although [during] periods
of withdrawal . . . he has significant difficulty coping with his home situation.” Id. at 452 (citations
and internal quotation marks omitted) (brackets in original).
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The ALJ acknowledged that the plaintiff had (i) argued that Dr. Bloom’s assessments
should be given little weight because they significantly overstated and misrepresented his
substance abuse issues and (ii) emphasized his objection to Dr. Bloom’s assessment of his social
functioning, asserting that he was unable to tolerate social interaction. See id. However, the ALJ
deemed those arguments “without merit and inconsistent with [the plaintiff’s] self-report of his
substance use and more recent periods [of] increased and decreased level of functioning during
corresponding period[s] of recovery and relapse.” Id. He added:
Dr. Bloom based his opinions on his treating relationship with the [plaintiff,]
providing him with a longitudinal view of the [plaintiff]’s course of treatment and
the effect of sobriety and relapse on his ability to function. Dr. Bloom’s opinion is
consistent with the medical evidence of record and the evidence of record as a
whole. Moreover, the undersigned notes that, inexplicably, the [plaintiff] did not
submit Dr. Bloom’s April 30, 2012[,] mental residual functional capacity [opinion]
at the time of his prior hearing despite its availability. Further, the undersigned
notes that no follow up explanation was provided during the supplemental hearing
as to why Dr. Bloom’s mental residual functional capacity [opinion] was not
submitted prior to the undersigned’s unfavorable decision issued on December 17,
2013.
Id.
The ALJ gave “some weight” to the Phillips assessment, to the extent that it was consistent
with his decision. Id. He noted that (i) Dr. Phillips had deemed Dr. Kahl’s diagnosis of bipolar
disorder unsupported by the medical evidence of record, (ii) Dr. Kahl later conceded, after
reviewing Dr. Bloom’s treatment notes, that Dr. Bloom’s diagnosis of an anxiety disorder was
more consistent with the record, and (iii) Dr. Phillips had concluded that Dr. Bloom’s treatment
summary did not indicate the severe symptoms described in Dr. Kahl’s testing report. See id.
The ALJ gave “little weight” to the 2012 report of Dr. Kahl that the plaintiff had moderate
to severe psychological impairments, noting that much of that opinion was based on Dr. Kahl’s
diagnostic impression of bipolar disorder. Id. at 453. The ALJ rejected Dr. Kahl’s supplemental
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opinion that the diagnosis made little difference and that the Bloom treatment notes supported Dr.
Kahl’s 2012 findings. See id. The ALJ explained, “Dr. Bloom’s treatment notes reflect an
increasing level of daily functioning[,] and his own opinion reflects the undersigned’s ultimate
finding: that the [plaintiff]’s alcohol dependence is material to the finding of disability in this
case.” Id.
2. Plaintiff’s Points
The plaintiff complains that the ALJ erred in (i) not adopting the Hymoff opinion but
giving great weight to those of Drs. Maierhofer and Burkhart, (ii) giving significant weight to the
Bloom opinion, and (iii) failing to provide good reasons for his evaluation of Dr. Kahl’s opinion
as supplemented in 2016. See Statement of Errors at 4-5.
However, as the commissioner notes, see Defendant’s Opposition to Plaintiff’s Itemized
Statement of Errors (“Opposition”) (ECF No. 14) at 3, picking and choosing between conflicting
medical opinions is the ALJ’s job as fact-finder, see, e.g., Rodriguez, 647 F.2d at 222 (“The
[commissioner] may (and, under h[er] regulations, must) take medical evidence. But the resolution
of conflicts in the evidence and the determination of the ultimate question of disability is for h[er],
not for the doctors or for the courts.”). I find no basis on which to disturb the ALJ’s weighing of
the sharply conflicting opinion evidence before him.
a. Maierhofer, Burkhart, and Hymoff Opinions
The plaintiff contends that the Hymoff opinion should have been adopted over those of
Drs. Maierhofer and Burkhart because Dr. Hymoff reviewed all available evidence of record,
including the treatment records and opinions of Dr. Bloom and the original and supplemental
opinions of Dr. Kahl, none of which Drs. Maierhofer or Burkhart saw. See Statement of Errors at
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4. At oral argument, the plaintiff’s counsel added that Drs. Maierhofer and Burkhart did not have
the benefit of review of any of the Hymoff testimony.
As the commissioner rejoins, see Opposition at 3, while the completeness of the record
reviewed is a relevant consideration, see, e.g., 20 C.F.R. § 404.1527(c)(3), “[a]n [ALJ] is not
required to adopt the opinion of one non-examining reviewer over that of [an earlier reviewer]
merely because that opinion comes later in time[,]” Wood v. Astrue, No. 1:10-cv-243-JAW, 2011
WL 1298460, at *4 (D. Me. Mar. 31, 2011) (rec. dec., aff’d Apr. 19, 2011).
An ALJ may rely on the opinions of agency nonexamining consultants who have not seen
later-submitted evidence when that evidence does not “call into question their conclusions[,]”
Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL 5256294, at *4 (D. Me. Sept. 27, 2012) (rec.
dec., aff’d Oct. 23, 2012), aff’d, No. 13-1001 (1st Cir. June 7, 2013). See also, e.g., Strout v.
Astrue, Civil No. 08-181-B-W, 2009 WL 214576, at *8-9 (D. Me. Jan. 28, 2009) (rec. dec., aff’d
Mar. 5, 2009) (no error in reliance on opinions of agency nonexamining consultants when unseen
records were either cumulative of those seen or reflected improvement in claimant’s condition and
functionality, and unseen treating source opinions reflecting greater restrictions were supportably
rejected by ALJ).
At oral argument, the plaintiff’s counsel sought to distinguish Anderson on the basis that it
involved later-submitted raw medical evidence that did not call into question agency
nonexamining consultants’ opinions and Strout on the basis that it did not involve later-adduced
expert testimony at hearing. I perceive no material distinction.
As the commissioner argues, see Opposition at 4, while Drs. Maierhofer and Burkhart did
not have the benefit of review of Dr. Bloom’s underlying treatment notes or April 30, 2012,
opinion, their conclusion that the plaintiff’s substance use was material to the finding of disability
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is consistent with Dr. Bloom’s opinion that, after a five-month period of sobriety, the plaintiff’s
mental impairments did not interfere with his ability to understand, remember, and carry out
instructions, interact with others, or respond to changes in a routine work setting, compare Record
at 80-81, 92-94 with id. at 697-99. The Bloom materials hence buttress, rather than call into
question, the Maierhofer and Burkhart opinions.
As in Strout, the fact that Drs. Maierhofer and Burkhart did not see the opinions of Drs.
Hymoff or Kahl is of little moment because the ALJ supportably gave them little weight. The
plaintiff’s challenge to the ALJ’s assignment of little weight to the Hymoff testimony hinges on
his unavailing assertion that the ALJ erred in choosing to credit the opinions of Drs. Maierhofer
and Burkhart over that of Dr. Hymoff. See Statement of Errors at 4. And, for the reasons discussed
below, the ALJ did not err in assigning little weight to the Kahl opinion as supplemented.
The plaintiff, thus, falls short of demonstrating that the ALJ erred in according great weight
to the Maierhofer and Burkhart opinions.
b. April 30, 2012, Bloom Opinion
The plaintiff next asserts that the ALJ erred in three respects in giving Dr. Bloom’s April
30, 2012, opinion significant weight: that he (i) deemed it consistent with the evidence of record
when it was inconsistent with the opinions of Drs. Hymoff and Kahl, (ii) overlooked the fact that
Dr. Bloom provided only a brief explanation for his opinion, and (iii) “appeared to base his
evaluation of Dr. Bloom’s opinion upon findings” that the plaintiff failed to submit that opinion at
the time of his initial hearing or explain, at his supplemental hearing, why he failed to do so.
Statement of Errors at 4-5.
That Dr. Bloom’s opinion was inconsistent with those of Drs. Hymoff and Kahl did not
prevent the ALJ from according it significant weight. Indeed, as the commissioner notes, see
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Opposition at 6, it was the ALJ’s job to weigh such conflicting opinions, see, e.g., Rodriguez, 647
F.2d at 222. To the extent that the plaintiff separately challenges the supportability of the ALJ’s
decision to accord the Hymoff and Kahl opinions little weight, those challenges fall short for the
reasons discussed above and below.
As the commissioner observes, see Opposition at 6, even if the plaintiff is correct that Dr.
Bloom provided only a limited explanation in his April 2012 form, see Record at 697-99, he
provided additional detail in his May 15, 2012, and July 17, 2012, letters, see id. at 692-95, which
the ALJ also considered, see id. at 452.
Finally, while the ALJ noted that the April 30, 2012, Bloom opinion was not submitted
prior to his earlier decision despite its availability, it is not clear that this observation had anything
to do with his assessment of its merits. See id. Regardless, he offered good and sufficient reasons
for assigning it substantial weight: that “Dr. Bloom based his opinions on his treating relationship
with the [plaintiff,] providing him with a longitudinal view of the [plaintiff]’s course of treatment
and the effect of sobriety and relapse on his ability to function[,]” and that “Dr. Bloom’s opinion
[wa]s consistent with the medical evidence of record and the record as a whole.” Id. The plaintiff
does not meaningfully challenge these rationales. See Statement of Errors at 4-5.3
The plaintiff, thus, falls short of demonstrating that the ALJ erred in according significant
weight to the Bloom opinion.
The ALJ deemed the Bloom opinion consistent with the record evidence as a whole “given the stark contrast in the
[plaintiff]’s symptoms and daily activities during periods of sobriety versus periods of relapse.” Record at 453. See
also, e.g., id. at 445 (describing Dr. Bloom’s observation that the plaintiff typically experienced periodic relapses into
drinking about every three months as “generally consistent with the evidence of record, which tracks a cycle of sobriety
with increased functioning and decreased anxiety and depression, followed by a brief period of relapse with decreased
functioning and increased symptomatology”) (citations omitted). As the commissioner observes, see Opposition at 78, the ALJ described that evidence in detail, noting that the plaintiff’s activities when sober included attending regular
Alcoholics Anonymous meetings, maintaining relationships, looking for jobs, traveling to California, working toward
his Master of Business Administration degree, skiing, meditating, doing yoga, self-publishing a book of poetry,
working on a novel/memoir, taking a leadership role during residential treatment, and working at his parents’ store,
see Record at 443-44, 455-57.
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c. Kahl Report and Supplement
The plaintiff finally contends that the ALJ failed to provide good reasons for discounting
the opinion of Dr. Kahl, as supplemented in 2016. See Statement of Errors at 5. However, as the
commissioner observes, see Opposition at 9, he was not required to do so, see, e.g., Smythe v.
Astrue, No. 2:10-cv-251-GZS, 2011 WL 2580650, at *5 (D. Me. June 28, 2011) (rec. dec., aff’d
July 21, 2011) (treating source rule, pursuant to which a medical opinion may be rejected only for
good reasons, does not apply to a one-time examining consultant).
In any event, as the commissioner argues in the alternative, see Opposition at 10-11, the
ALJ supplied good reasons for his handling of Dr. Kahl’s opinion: that much of it was based on
Dr. Kahl’s diagnostic impression of bipolar disorder and that it was inconsistent with Dr. Bloom’s
treatment notes and opinion, see Record at 452-53.
The plaintiff contends that the ALJ exceeded the bounds of his expertise as a layperson in
rejecting Dr. Kahl’s “post-hoc reasoning” that whether the diagnosis was anxiety or bipolar
disorder did not matter for purposes of assessing the plaintiff’s limitations. Statement of Errors at
5; Record at 453. However, the ALJ relied not only on his own analysis of the Kahl report but
also on that of Dr. Phillips, whose discussion indicated that the symptoms of those conditions are
not identical. See Record at 452 (observation by ALJ that “Dr. Phillips opined that Dr. Kahl’s
bipolar diagnosis [wa]s not supported by the medical evidence of record in the absence of any
discrete period of a manic or mixed episode.”) (citation omitted). Moreover, as the ALJ noted, see
id. at 452, Dr. Kahl himself based much of his 2012 opinion on his diagnostic impression of bipolar
disorder, see id. at 425-26.
The plaintiff does not challenge the ALJ’s second reason for according the Kahl opinion
little weight: its inconsistency with the Bloom treatment notes and opinion. See Statement of
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Errors at 5. Inconsistency with other medical evidence of record is a good reason to discount even
the opinion of a treating source. See, e.g., Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017
WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff’d Jan. 2, 2018) (“[L]ack of support and
inconsistency with other substantial evidence of record are well-recognized bases for affording a
treating source’s medical opinion little or no weight.”).
The plaintiff, thus, falls short of demonstrating that the ALJ erred in according little weight
to the Kahl report and supplement.
B. The ALJ’s Evaluation of Subjective Statements
The plaintiff finally asserts, and the commissioner concedes, that, in evaluating his
statements regarding his symptoms and limitations, the ALJ erroneously cited Social Security
Ruling 96-7p (“SSR 96-7”) rather than Social Security Ruling 16-3p (“SSR 16-3p”), which
superseded SSR 96-7p prior to the date of the ALJ’s decision. See Statement of Errors at 5-6;
Opposition at 12. However, the plaintiff identifies no error flowing from the mistaken citation.
See Statement of Errors at 5-7.
Instead, the plaintiff generally argues that the ALJ erred in failing to “even describe or
summarize [his] testimony on the record during the second hearing, the vast majority of which
served to answer the ALJ’s questions regarding ‘inconsistencies’ in the record.” Id. at 6 (citation
omitted). As a result, he complains, the ALJ “erroneously evaluated [his] claim for a closed period
of disability based upon those inconsistencies without considering his testimony on the subject.”
Id. at 6-7. This contention fails for two reasons.
First, as the commissioner correctly points out, see Opposition at 13, the ALJ did not
simply ignore the plaintiff’s testimony from the second hearing: he referenced that testimony at
least twice. He rejected the plaintiff’s explanation that his comment to Dr. Bloom that he was
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“working hard” was in relation to working hard on his treatment, citing its inconsistency with the
plaintiff’s numerous other statements detailing his work at his parents’ store. See Record at 442
see also id. at 485-86. And he acknowledged, but rejected, the plaintiff’s objections to Dr. Bloom’s
emphasis on the role that alcohol played and his assessment of the plaintiff’s social functioning.
See id. at 452; see also id. at 485, 489.
Second, as the commissioner notes, see Opposition at 12-13, SSR 16-3p does not require
an ALJ to “summarize” or discuss line by line a claimant’s entire testimony. Instead, it requires
that adjudicators “examine the entire case record” and issue a decision that “contain[s] specific
reasons for the weight given to the individual’s symptoms, [is] consistent with and supported by
the evidence, and [is] clearly articulated so the individual and any subsequent reviewer can assess
how the adjudicator evaluated the individual’s symptoms.” SSR 16-3p, reprinted in West’s Social
Security Reporting Service Rulings 1983-1991 (Supp. 2018), at 668, 674. The ALJ did so here.
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum
and request for oral argument before the district judge, if any is sought, within fourteen (14)
days after being served with a copy thereof. A responsive memorandum and any request for
oral argument before the district judge shall be filed within fourteen (14) days after the filing of
the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 8th day of October, 2018.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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