Morin v. Commissioner
OPINION and ORDER Granting Plaintiff's 9 MOTION for Summary Judgment, Denying Defendant's 16 MOTION for Summary Judgment, and Remanding for Further Proceedings. Signed by District Judge Bernard A. Friedman. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KIM LORRAINE MORIN,
Civil Action No. 16-CV-13264
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER GRANTING PLAINTIFF=S MOTION FOR SUMMARY
JUDGMENT, DENYING DEFENDANT=S MOTION FOR SUMMARY JUDGMENT,
AND REMANDING FOR FURTHER PROCEEDINGS
This matter is presently before the Court on cross motions for summary judgment
[docket entries 9 and 16]. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these
motions without a hearing. For the reasons stated below, the Court shall grant plaintiff=s motion,
deny defendant=s motion, and remand the case for further proceedings.
Plaintiff has brought this action under 42 U.S.C. ' 405(g) to challenge defendant=s
final decision denying her application for Social Security disability insurance and Supplemental
Security Income (ASSI@) benefits. An Administrative Law Judge (AALJ@) held a hearing in May
2015 (Tr. 30-75) and issued a decision denying benefits in July 2015 (Tr. 12-24). This became
defendant=s final decision in July 2016 when the Appeals Council denied plaintiff=s request for
review (Tr. 1-3).
Under ' 405(g), the issue before the Court is whether the ALJ=s decision is
supported by substantial evidence. As the Sixth Circuit has explained, the Court
must affirm the Commissioner=s findings if they are supported by
substantial evidence and the Commissioner employed the proper
legal standard. White, 572 F.3d at 281 (citing 42 U.S.C. ' 405(g));
Elam ex rel. Golay v. Comm=r of Soc. Sec., 348 F.3d 124, 125 (6th
Cir. 2003); Walters v. Comm=r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir. 1997). Substantial evidence is Asuch relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.@
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d
842 (1971) (internal quotation marks omitted); see also Kyle, 609
F.3d at 854 (quoting Lindsley v. Comm=r of Soc. Sec., 560 F.3d 601,
604 (6th Cir. 2009)). Where the Commissioner=s decision is
supported by substantial evidence, it must be upheld even if the
record might support a contrary conclusion. Smith v. Sec=y of Health
& Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). However, a
substantiality of evidence evaluation does not permit a selective
reading of the record. ASubstantiality of the evidence must be based
upon the record taken as a whole. Substantial evidence is not simply
some evidence, or even a great deal of evidence. Rather, the
substantiality of evidence must take into account whatever in the
record fairly detracts from its weight.@ Garner v. Heckler, 745 F.2d
383, 388 (6th Cir. 1984) (internal citations and quotation marks
Brooks v. Comm=r of Soc. Sec., 531 F. App=x 636, 640-41 (6th Cir. 2013).
At the time of her May 2015 hearing, plaintiff was 53 years old (Tr. 37). She has
an eleventh grade education (Tr. 234) and relevant work experience as a cashier, stock person, and
store assistant manager (Tr. 39-41, 218, 235). Plaintiff claims she has been disabled since
February 2013 (Tr. 202) due to diabetes, depression, sleep apnea, neuropathy, restless leg
syndrome, arthritis in her knees, inability to sit or stand for long, numbness and pain in her feet
and legs, blacking out, and difficulty with her legs (Tr. 233).
The ALJ found that plaintiff=s severe impairments are Aobesity, peripheral
neuropathy, diabetes mellitus, chronic obstructive pulmonary disease, and affective disorder@
(Tr. 14). He also found that plaintiff=s bilateral carpal tunnel syndrome is non-severe and that her
fibromyalgia and restless leg syndrome are Anon-medically determinable impairments@ (Tr. 142
15). Further, the ALJ found that plaintiff cannot perform any of her past work (Tr. 22) but that
she has the residual functional capacity (ARFC@) to perform a limited range of light work.1 A
vocational expert (AVE@) testified initially in response to a hypothetical question that a person of
plaintiff=s age, education, and work experience, and who has this RFC, could perform certain
unskilled, light-level jobs as electrical assembler, small parts assembler, or inspector/hand
packager (Tr. 64). When questioned further, however, the VE stated that if the hypothetical
worker needed to use an assistive device, such as a walker, at all times while standing, then he/she
would have to do these jobs entirely while sitting (Tr. 70, 73). Although the ALJ found that
plaintiff Ais limited to performing jobs where an individual can use a handheld assistive device at
all times when standing,@ and the VE testified that this limitation would restrict the worker to
sedentary jobs, the ALJ nonetheless concluded that plaintiff is not disabled because she could
perform the light-level jobs identified by the VE (Tr. 23-24).
Specifically, the ALJ found that plaintiff has the RFC
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can never crawl, or climb ladders, ropes, or
scaffolds, and can only occasionally stoop, kneel, crouch, or climb
ramps or stairs. She is able to occasionally balance with the use of
a handheld assistive device, and she must avoid all exposure to
unguarded moving mechanical parts and unprotected heights. The
claimant is limited to performing jobs where an individual can use a
handheld assistive device at all times when standing. She is limited
to performing simple, routine, repetitive tasks, and cannot perform
work at a production rate pace.
(Tr. 17.) Sections 404.1567(b) and 416.967(b) define light work as Ainvolv[ing] lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.@
Having reviewed the administrative record and the parties= briefs, the Court
concludes that the ALJ=s decision in this matter is not supported by substantial evidence because
his RFC evaluation of plaintiff is flawed. Since the hypothetical question incorporated this flawed
RFC evaluation, it failed to describe plaintiff in all relevant respects and the VE=s testimony given
in response thereto cannot be used to carry defendant=s burden to prove the existence of a
significant number of jobs plaintiff is capable of performing. The ALJ also erred in finding that
plaintiff is not disabled based on the existence of jobs which, according to the VE, appear to exceed
The ALJ=s RFC assessment of plaintiff is flawed for the following reasons. First,
the ALJ failed to consider the side effects of plaintiff=s medications. The record indicates that
plaintiff takes, or at various times has taken, a number of medications for pain, diabetes,
depression, and other ailments, including atorvastatin calcium, crestor, bagapentin, glyburide,
lantus injections, lyrica, metformin, effexor, lasix, citalopram, furosemide, aspir, meloxicam,
sertraline, zoloft, venlafaxine, buspar, and buspirone (Tr. 44, 236, 273, 316, 372-73, 508, 744-47,
871, 889, 897, 910, 920). Plaintiff told one of her treating physicians, Dr. Jawed, that one of her
pain medications B of which she takes nine pills per day (Tr. 44, 897) B makes her feel Agoofy@
(Tr. 371). Plaintiff=s psychotherapist reported that plaintiff experiences medication side effects
of fatigue, lethargy, and confusion (Tr. 586). Another treating physician, Dr. Hanna, reported that
one of plaintiff=s depression medications Acaused side effects with increased fatigue and tiredness
and excessive sleep@ (Tr. 895, 897). Plaintiff testified that she Asleep[s] a lot@ (Tr. 49).
The ALJ clearly erred in failing to make any findings regarding plaintiff=s
medication side effects. The Sixth Circuit has held that the ALJ must evaluate A[t]he type, dosage,
effectiveness, and side effects of any medication@ as part of the process of determining the extent
to which side effects impair a claimant=s capacity to work. Keeton v. Comm=r of Soc. Sec., 583 F.
App=x 515, 532 (6th Cir. 2014) (quoting 20 C.F.R. ' 416.929(c)(3)(i)-(vi)). Further, hypothetical
questions to vocational experts must account for medication side effects. See White v. Comm=r of
Soc. Sec., 312 F. App=x 779, 789-90 (6th Cir. 2009). On remand, the ALJ must determine which
medications plaintiff was taking during the relevant time period; make findings as to the nature
and extent of these medications= side effects, if any; adjust his findings as appropriate regarding
plaintiff=s RFC; and incorporate these findings in proper hypothetical questions to the VE.
Second, the RFC evaluation in this case is flawed because the ALJ neglected to
make required findings concerning the effect, if any, of plaintiff=s obesity on her other impairments
and on her RFC. The record contains several notations that plaintiff=s body mass index (ABMI@)
is well over 30,2 which is the point at which defendant=s regulations consider a person to be obese.
See SSR 02-1p. The ALJ must consider a disability claimant=s obesity at all steps of the sequential
process. See id., Policy Interpretation & 3. Further,
[o]besity is a medically determinable impairment that is often
associated with disturbance of the musculoskeletal system, and
disturbance of this system can be a major cause of disability in
individuals with obesity. The combined effects of obesity with
musculoskeletal impairments can be greater than the effects of each
of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a
claim at other steps of the sequential evaluation process, including
when assessing an individual=s residual functional capacity,
adjudicators must consider any additional and cumulative effects of
See, e.g., Tr. 305 [BMI 39.52], 308 [BMI 40.15], 407, 688 [BMI 45.62], 887 [ BMI
44.95], 905 [BMI 46.67], 933 [BMI 47.48].
20 C.F.R. Pt. 404, Subpt. P, App. 1 ' 1.00Q (emphasis added).
In the present case, the ALJ found that obesity is one of plaintiff=s severe
impairments (Tr. 14). The ALJ also acknowledged that under SSR 02-1p he must consider the
effect of this impairment on plaintiff=s other impairments in evaluating her RFC (Tr. 15). While
the ALJ stated that A[t]hese considerations have been taken into account,@ id., he does not explain
how he did so. Further, the ALJ clearly erred in stating that Ano treating or examining medical
source has specifically attributed additional or cumulative limitations to the claimant=s obesity,@
id., as one of plaintiff=s treating physicians, Dr. Jawed, plainly stated that Amost of her medical
conditions are related to obesity including sleep apnea, restless legs, diabetes, hyperlipidemia and
chronic lymphedema@ (Tr. 387).3 On remand, the ALJ must make specific findings as to the
effect, if any, of plaintiff=s obesity on her other impairments.
In particular, the ALJ must
determine whether and to what extent plaintiff=s obesity exacerbates her COPD and her diabetic
symptoms, including her neuropathic pain and the edema in her legs and/or diminishes her ability
to sit, stand, walk, or concentrate. The ALJ must include any such findings in reevaluating
plaintiff=s RFC and, as appropriate, in framing revised hypothetical question(s) to the VE.
Third, the RFC evaluation is flawed because the ALJ dismissed plaintiff=s bilateral
carpal tunnel syndrome (ACTS@) as Anon-severe@ (Tr. 14). The Sixth Circuit has stated that the
step-two Aseverity@ requirement serves as a Ade minimus@ threshold hurdle that is meant to screen
out Atotally groundless@ claims. Higgs v. Bowen, 880 F.2d 860, 862B63 (6th Cir. 1988). A[A]n
The ALJ later contradicted himself, stating that A[i]t was indicated [by Dr. Jawed at Tr.
387] that most of the claimant=s conditions were related to her obesity@ (Tr. 19, last para., and Tr.
21, third para.). Nonetheless, the ALJ neglected to make any findings as to the extent to which
plaintiff=s obesity exacerbates her other impairments, as required by SSR 02-1p.
impairment can be considered not severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education and experience.@ Id. at 862.
In the present case, it was error for the ALJ to dismiss plaintiff=s CTS as non-severe.
While the ALJ correctly noted that the EMG tests of plaintiff=s wrists were interpreted as
Aelectrophysiologically mild@ (Tr. 391), the ALJ appears to have overlooked the fact that plaintiff
has been prescribed braces for both wrists (Tr. 412, 426, 859). In light of this prescription,
combined with plaintiff=s testimony that her arm pain is one of the reasons she believes she cannot
work (Tr. 42), plaintiff=s CTS passes the Ade minimus threshold.@ On remand, the ALJ must
include this impairment in reevaluating plaintiff=s RFC and putting revised hypothetical questions
to the VE.
Fourth, the RFC evaluation in this case is flawed because the ALJ neglected to
making any findings as to plaintiff= claimed need to raise her legs to prevent them from swelling.
Plaintiff testified that A[i]f I sit too long, my legs start swelling up so I have to elevate them or prop
them up@ (Tr. 42). The medical records contain several references to edema in plaintiff=s legs,
including one emergency room visit for this impairment (Tr. 918, 920, 924, 926, 930, 932). On
remand, the ALJ must make findings as to the severity of plaintiff=s edema, and include his findings
in reevaluating plaintiff=s RFC and putting revised hypothetical questions to the VE.
Fifth, the RFC evaluation is flawed because the ALJ failed to explain adequately
why he discounted plaintiff=s hearing testimony and other statements. Plaintiff testified that she
can lift at most ten pounds, that she must use a walker and cannot Astand or walk a lot,@ and that
A[i]f I sit too long, my legs start swelling up so I have to elevate them or prop them up@ (Tr. 42,
53). If credited, these limitations would be inconsistent with the ALJ=s finding that plaintiff can
do light work, which assumes an ability to lift up to 20 pounds occasionally and up to ten pounds
frequently and the ability to do Aa good deal of walking or standing.@ See n.1, supra. While the
ALJ is not required to accept plaintiff=s testimony, his Aassessment of a claimant=s credibility must
be supported by substantial evidence.@ Walters v. Comm=r of Soc. Sec., 127 F.3d 525, 531 (6th
In the present case, the ALJ found that plaintiff=s
general credibility is reduced somewhat by the fact that she has
continued to smoke cigarettes against repeated medical advice,
despite her chronic obstructive pulmonary disease, and that she has
been non-compliant with diabetes medication on several occasions.
. . . At the hearing, the claimant denied ever being advised to lose
The claimant=s failure to follow repeated
recommendations by health care providers to lose weight and stop
smoking suggests her symptoms are not as severe as she alleges.
(Tr. 21.) These statements do not support the ALJ=s adverse credibility findings. Plaintiff
testified that she had smoked more heavily in the past and has cut down to ten cigarettes per day
(Tr. 46). The fact that she continues to smoke against medical advice does not logically support
the conclusion that Aher symptoms are not as severe as she alleges,@ given the indisputable fact that
nicotine is a powerfully addictive drug.4 Nor does the fact that plaintiff has failed to lose weight,
contrary to medical advice, logically support the conclusion that her medical problems are less
The National Institute on Drug Abuse, a subdepartment within the U.S. Department of
Health and Human Services, states that nicotine addiction Ais characterized by compulsive drug
seeking and abuse, even in the face of negative health consequences. It is well documented that
most smokers identify tobacco use as harmful and express a desire to reduce or stop using it, and
nearly 35 million of them want to quit each year. Unfortunately, more than 85 percent of those
who try to quit on their own relapse, most within a week.@
Apr. 11, 2017).
severe than she alleges. Defendant=s Policy Interpretation of SSR 02-1p recognizes that A[o]besity
is a complex, chronic disease characterized by excessive accumulation of body fat. Obesity is
generally the result of a combination of factors (e.g., genetic, environmental, and behavioral).@
The ALJ appears to assume that plaintiff could lose weight if she chose to do so, and that by
choosing not to do so, her impairments must not be of disabling severity. Neither the premise nor
the conclusion is supported by logic, the record, or any citation to authority.5
The ALJ=s statement that plaintiff=s credibility suffers because Ashe has been noncompliant with diabetes medication on several occasions@ is likewise unsupported by the record.
The only evidence cited by the ALJ is AExhibit 11F/97@ (Tr. 21, line 2), where Dr. Hanna stated
that plaintiff=s diabetes Ais not controlled . . . she does miss some doses of insulin@ (Tr. 907). When
questioned about this at the hearing, plaintiff testified that she
was getting those pens, and I ran out, so I had to call the doctor for
insulin. And then they gave me B it=s a little glass tube, and I didn=t
know nothing about it. So I went to the doctor=s office, and they
had to show me how to use it. But I was only a few days without
it. . . . I=d never used one of those needles where you put it in the jar
and pull it out.
(Tr. 48.) In his decision, the ALJ did not acknowledge this explanation. On this record, it was
entirely unreasonable for the ALJ to discount plaintiff=s credibility on the grounds she missed
Asome doses@ of her insulin. Further, the ALJ does not explain why missing some doses of insulin
has any bearing on the believability of plaintiff=s testimony regarding the nature and severity of
her impairments and symptoms.
The ALJ=s decision to discount plaintiff=s credibility on this basis is all the more
perplexing given his statement that Ano treating or examining medical source has specifically
attributed additional or cumulative limitations to the claimant=s obesity@ (Tr. 15).
Nor is the ALJ=s adverse credibility finding supported by his statement that A[t]he
claimant=s reported level of activities of daily living also suggests she retains the ability to perform
sustained work activities . . . . She has reported that she drives, prepares meals, dusts, vacuums,
and cleans the bathroom, as well as shopping for food@ (Tr. 21). Plaintiff testified that she can
drive but that she does so only in emergencies; and that she Asit[s] on my walker while I=m
cooking,@ does Aa little dusting,@ cleans her bathroom, and go shopping Aonce or twice a month@
(Tr. 39, 50). She also stated she generally stays at home and Asleep[s] a lot@ (Tr. 43, 49). These
minimal daily activities do not reasonably support the ALJ=s finding that plaintiff is able to work
In sum, substantial evidence does not support the ALJ=s adverse credibility finding.
On remand, the ALJ must reassess plaintiff=s credibility and, in particular, explain whether and
why he accepts or rejects plaintiff=s testimony that she can lift at most ten pounds, that her ability
to stand and walk is extremely limited, and that she must raise her legs to prevent them from
swelling. To the extent the ALJ accepts any of these restrictions, he must reevaluate plaintiff=s
RFC and put revised hypothetical question(s) to the VE.
Sixth, the ALJ=s RFC evaluation is flawed because he failed to explain adequately
why he gave Alittle weight@ to the opinions of one of plaintiff=s treating physicians, Dr. Hanna. In
questionnaire answers dated February 18, 2015, Dr. Hanna indicated, among other things that
plaintiff can sit for at most 30 minutes, that she could lift up to 20 pounds occasionally, that she
would need to take at least two unscheduled breaks during a workday due to muscle weakness and
chronic fatigue, that her symptoms would cause her to be Aoff task@ 15% of the time, and that she
would miss more than four days per month due to her impairments or treatment (Tr. 914-17).
Except for the lifting restriction, which he gave Asignificant weight,@ the ALJ gave Dr. Hanna=s
opinions Alittle weight@ because
[t]he claimant=s objective treatment notes do not document a
diagnosis of fibromyalgia, or positive trigger points. The basis for
the finding that the claimant would be off-task for 15% of the day,
and would require unscheduled breaks, is unclear, as such severe
limitations are not supported by the claimant=s medical records.
This statement of reasons does not comport with the treating physician rule, which
requires the ALJ to
give controlling weight to a treating physician=s opinion as to the
nature and severity of the claimant=s condition as long as it Ais
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.@ 20 C.F.R. '
404.1527(d)(2) (language moved to 20 C.F.R. ' 404.1527(c)(2) on
March 26, 2012). The premise of the rule is that treating physicians
have the best detailed and longitudinal perspective on a claimant=s
condition and impairments and this perspective Acannot be obtained
from objective medical findings alone.@ 20 C.F.R. ' 416.927(d)(2)
(language moved to 20 C.F.R. ' 416.927(c)(2) on March 26, 2012).
Even when not controlling, however, the ALJ must consider certain
factors, including the length, frequency, nature, and extent of the
treatment relationship; the supportability of the physician=s
conclusions; the specialization of the physician; and any other
relevant factors. Rogers, 486 F.3d at 242. In all cases, the treating
physician=s opinion is entitled to great deference even if not
controlling. Id. The failure to comply with the agency=s rules
warrants a remand unless it is harmless error. See Wilson, 378 F.3d
Gentry v. Comm=r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014). Leaving aside the fibromyalgia,
Dr. Hanna also indicated that plaintiff has major depression, peripheral neuropathy, and
uncontrolled diabetes. The uncontrolled nature of plaintiff=s diabetes is well documented in the
record (Tr. 309, 315, 411, 417, 817, 828, 907), as are plaintiff=s complaints of dizziness,
neuropathic pain, and fatigue. The ALJ erred factually in stating that the basis for Dr. Hanna=s
limitations is Aunclear@ and Anot supported by the claimant=s medical records.@ On remand, the
ALJ must reevaluate Dr. Hanna=s opinions and, as appropriate, adjust his RFC assessment of
plaintiff and his hypothetical question(s) to the VE.
Finally, in addition to the flaws in the RFC evaluation, discussed above, the ALJ
erred in finding that plaintiff can perform the jobs identified by the VE. As noted above, the ALJ
found that plaintiff Ais able to occasionally balance with the use of a handheld assistive device@
and that she Ais limited to performing jobs where an individual can use a handheld assistive device
at all times when standing@ (Tr. 17). The record is replete with references to plaintiff=s need to
use a walker. Plaintiff=s husband reported that plaintiff Ahas an extremely hard time walking or
standing for any period of time@ and that she has been prescribed a walker (Tr. 244, 250). Plaintiff
reported that her ability to stand and walk are affected by her impairments and that she has been
prescribed a walker (Tr. 261). Dr. Jawed prescribed a walker in September 2013 and indicated
that plaintiff A[r]eports severe pain in both the legs and feet [and] [f]eels dizzy and has recurrent
falls@ (Tr. 315). Elsewhere Dr. Jawed noted that plaintiff A[w]alks with the help of walker so
physical activity is limited@ and that she Ahas severe and constant pain in her legs and walking
difficulty [and] . . . ambulates with the help of a walker@ (Tr. 358, 402). Plaintiff testified that she
uses her walker A[a]ll the time,@ that she sits on it while cooking, and that cannot stand without
leaning on it (Tr. 42, 46, 50, 52).
From his findings that plaintiff Ais able to occasionally balance with the use of a
handheld assistive device@ and that she Ais limited to performing jobs where an individual can use
a handheld assistive device at all times when standing@ (Tr. 17), it is apparent that the ALJ accepted
the fact that plaintiff uses a walker for support while walking and standing. The VE clarified that
the electrical and small parts assembly and inspector/hand packager jobs he identified can be
performed sitting or standing, but that no jobs requiring standing could be done by a person who
needs to use an assistive device, such as a walker (Tr. 73). This, it would certainly seem, would
preclude plaintiff from performing any light-level work, as that exertional level assumes the ability
to do a significant amount of standing and walking, see n. 1, supra. The ALJ did not explain why
he found that plaintiff can perform these jobs despite the VE=s clarification. On remand, the ALJ
must resolve the contradiction between his finding that plaintiff can perform light-level work and
the VE=s testimony that such work cannot be done by a person who cannot stand unassisted.
For these reasons, the Court concludes that the ALJ=s decision in this matter is not
supported by substantial evidence. Remanding the matter for an award of benefits would not be
appropriate at this time because the record, in its current state, is not such that Aproof of disability
is overwhelming or . . . proof of disability is strong and evidence to the contrary is lacking.@
Faucher v. Sec=y of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). Rather, the
matter must be remanded so that the record may be further developed to address the deficiencies
IT IS ORDERED that defendant=s motion for summary judgment is denied.
IT IS FURTHER ORDERED that plaintiff=s motion for summary judgment is
granted and this matter is remanded for further proceedings as specified above. This is a sentence
four remand under ' 405(g).
Dated: April 13, 2017
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon the counsel of record and
any unrepresented parties via the Court’s ECF System to their respective email or First Class
U.S. Mail addresses disclosed on the Notice of Electronic Filing on April 13, 2017.
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