Smiley v. Commissioner of Social Security
Filing
15
DECISION AND ORDER DENYING Defendant's 11 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceedings consistent with this Decision and Order; DIRECTING. the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 10/8/2015. (MEAL) - CLERK TO FOLLOW UP - Copy of Decision and Order mailed to Plaintiff at address at footnote 1.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MONIQUE R. SMILEY, 1
Plaintiff,
v.
DECISION AND ORDER
14-CV-266S
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
1.
Plaintiff Monique R. Smiley challenges an Administrative Law Judge’s
(“ALJ”) determination, dated June 28, 2012, that she is not disabled as defined by the
Social Security Act (“the Act”). Plaintiff protectively filed an application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income benefits (“SSI”) benefits
on December 27, 2010, based on an inability to work due to lupus, rheumatoid arthritis,
high blood pressure, depression, carpal tunnel syndrome, back pain, and irritable bowel
syndrome. (R. 183, 193). Plaintiff alleges that she became disabled on June 15, 2009.
In her pro se preprinted complaint, Plaintiff contends that the ALJ’s determination was
not based upon substantial evidence and/or contrary to law. 2
2.
Plaintiff’s applications for DIB and SSI were initially denied. At Plaintiff’s
request, an administrative hearing was held before the ALJ on June 12, 2012. Plaintiff
appeared with counsel at the hearing where Plaintiff and a vocational expert both
testified. On June 28, 2012, the ALJ issued an opinion finding that Plaintiff was not
1
NOTE PRO SE PLAINTIFF gave a new address on her 11/3/14 response/reply (DN 13): 245 Palmdale Drive, Apt.
2; Williamsville, NY 14221; (716) 444-2510. The old address is still listed under the party information on CM/ECF.
2
Plaintiff was represented by counsel during the hearing and the administrative appeal.
1
disabled. On September 20, 2013, the Appeals Council denied Plaintiff’s request for
review, rendering the ALJ’s decision the final decision of the Commissioner.
3.
Plaintiff, now proceeding pro se, filed the current civil action on April 11,
2014, challenging the Commissioner’s final decision as erroneous and not supported by
either substantial evidence or the applicable law.
On September 18, 2014, the
Commissioner filed a Motion for Judgment on the Pleadings (Docket No. 11), pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. This Court finds the matter fully
briefed and oral argument unnecessary.
Judgment on the pleadings is appropriate
where material facts are undisputed and where a judgment on the merits is possible
merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc.,
842 F.2d 639, 642 (2d Cir. 1988).
For the reasons discussed below, the
Commissioner’s motion is denied.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).
Rather, the
Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is
evidence that amounts to “more than a mere scintilla,” and is defined as “such 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, 1427, 28 L. Ed. 2d 842
(1971). Where evidence is deemed susceptible to more than one rational interpretation,
2
the Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).
5.
“To determine on appeal whether the ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner’s finding must be sustained “even where substantial evidence may
support the plaintiff’s position and despite that the court’s independent analysis of the
evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992).
In other words, this Court must afford the Commissioner’s
determination considerable deference, and may not substitute “its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
Cir. 1984). Yet, “[w]here there is a reasonable basis for doubt whether the ALJ applied
correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
6.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled as defined under the Social
Security Act. See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court
recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107
3
S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for
analyzing whether a claimant is disabled.
7.
This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a “listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa
v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8.
While the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant’s job qualifications by considering her physical ability, age, education and work
experience.
Second, the Commissioner must determine whether jobs exist in the
national economy that a person having the claimant’s qualifications could perform. See
42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458,
460-61, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
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9.
In this case, the ALJ made the following findings with regard to the five-
step process set forth above: (1) Plaintiff had not engaged in substantial gainful activity
since June 15, 2009, the onset date of her alleged disability (R. 22) 3; (2) Plaintiff had the
following “severe” impairments, within the meaning of the Act: hypertension and chronic
fatigue syndrome (R. 23) (20 CFR 404.1520(c) and 416.920(c)); (3) neither these
impairments nor any combination thereof meet or medically equal a recognized
disabling impairment under Appendix 1 of the regulations, 20 CFR Part 404, Subpart P.
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.92(6) (R. 24); (4) Plaintiff had the residual functional capacity (“RFC”) to perform a
range of light work, with the limitation of a sit/stand option every thirty minutes (R. 28), 4
and (5) although Plaintiff was unable to perform her past relevant work as a gear-cutting
machine operator, medical records clerk, or phlebotomist (R. 34), she had the capacity
to perform other unskilled, light jobs, such as cashier or bench assembler, with the
noted restrictions. (R. 36).
10.
The Commissioner moves for judgment on the pleadings, affirming the
denial of Plaintiff’s benefits on the grounds that substantial evidence supports the
Commissioner’s decision. (Docket No. 11). Plaintiff did not file a cross motion for
judgment on the pleadings, nor does she raise specific challenges to the ALJ’s
determination. 5 Thus, the Court takes particular notice of the sufficiency of the ALJ’s
3
Citations to the administrative record are designated as “R.” In support of the Motion for Judgment on the Pleadings
(Docket No. 11), the Commissioner submitted a supporting Memorandum of Law (Docket No. 11-1), Plaintiff
responded pro se with a letter (Docket No. 13), and the Commissioner filed a Reply Memorandum of Law (Docket
No. 14).
4
Light work includes (1) lifting no more than 20 pounds at a time, (2) limiting the ability to reach in all directions or pull
with his upper extremities, and (3) no crawling or working in areas where Plaintiff would be exposed to cold. (R. 14).
5
The Docket contains various filings from Plaintiff containing medical records, some are duplicates and some are
dated after the hearing. Attached to her Complaint is a letter from Dr. Karaszewski, dated December 9, 2013,
indicating that she has a diagnosis of fibromyalgia. (Docket No. 1, p. 6).
5
credibility analysis, RFC determination, and inconsistencies in certain treatment notes,
in finding that legal errors in the ALJ’s opinion warrant remand for further review.
11.
At each step of the sequential evaluation process, the regulations require
the ALJ to consider the claimant’s subjective complaints about her symptoms, “such as
pain, fatigue, shortness of breath, weakness, or nervousness.”
20 C.F.R. §
404.1529(b),. 20 C.F.R. § 404.1529(d). The record reflects that Plaintiff alleges a
number of conditions contributing to her disability, and that at least one treating
physician acknowledged difficulty in finding a diagnosis to explain her various
symptoms. Consistent with Plaintiff’s complaints of fatigue and pain, the ALJ adopted a
statement by Plaintiff’s rheumatologist, Dr. Dhillon, relaying a possible diagnosis of
chronic fatigue syndrome (CFS) (as opposed to lupus), which the ALJ determined to be
a “severe impairment” under the Act. (R. 23, 327). The ALJ considered Social Security
Ruling 99-2 pertaining to evaluation of CFS cases, and noted a considerable overlap in
symptoms with fibromyalgia. (R. 23). He also raised the salient issue that although
CFS and fibromyalgia can be diagnosed solely by a patient’s subjective complaints, the
Regulations require objective findings to support a disability determination. (R. 23). As
this Court has stated, “because the methods for diagnosing chronic fatigue syndrome
are limited, the credibility of the claimant’s testimony regarding her symptoms takes on
‘substantially increased’ significance in the ALJ’s evaluation of the evidence.” Fragale
v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y. 1996) (citing Reed v. Sec’y of Health &
Human Servs., 804 F.Supp. 914, 918 (E.D.Mich. 1992). Accordingly, “when presented
with documented allegations of symptoms which are ‘entirely consistent with the
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symptomology’ for evaluating CFS, … the Secretary cannot rely on the ALJ’s rejection
of the claimant’s testimony based on the mere absence of objective evidence.” Id.
Nevertheless, here, the ALJ largely discounted Plaintiff’s allegations of daily pain,
stiffness, and extreme need to rest based on lack of objective medical evidence to
support her complaints.
The ALJ found that despite Plaintiff’s “assertions to the
contrary, the medical record does not support that [her] impairments are as severe as
she contends.” (R. 28). And further that “diagnostic studies clearly demonstrate that
the impairments are not as severe as alleged … nor do they record physiologic
abnormalities of a kind and level” to support Plaintiff’s complaints. (Id.).
The ALJ relied on various benign examination findings, including that Plaintiff’s
joints were normal and not swollen, and she had normal range of motion in her
extremities (See ALJ’s decision at, e.g., R. 28, citing R. 417; R. 29, citing R. 304; R. 30,
citing R. 326-327).
As support for the finding that Plaintiff’s alleged Lupus and
Rheumatoid Arthritis were not severe impairments for lack of objective findings, this
evidence is substantial.
As support for the credibility conclusion that Plaintiff’s
symptoms were not as severe as purported, however, this evidence is uninformative in
light of Plaintiff’s CFS impairment. Moreover, this Court has the benefit of hindsight and
a more recent fibromyalgia diagnosis, attached to Plaintiff’s complaint, which could
support the reliability of her allegations. (Docket No. 1, p.6); see Green-Younger v.
Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003) (“we have recognized that in stark contrast
to the unremitting pain of which [fibromyalgia] patients complain, physical examinations
will usually yield normal results—a full range of motion, no joint swelling, as well as
normal muscle strength and neurological reactions”)(citations and internal quotations
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omitted); Fragale, 916 F. Supp. at 254 (chronic fatigue syndrome not inconsistent with a
fibromyalgia diagnosis).
Generally, it is the ALJ’s duty, and not the Court’s, “to resolve evidentiary
conflicts and to appraise the credibility of witnesses, including the claimant,” Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir.2002). Indeed, the Court acknowledges that the
ALJ’s determination related to the severity of Plaintiff’s high blood pressure is based on
substantial evidence. The medical record supports that Plaintiff’s blood pressure was
“well controlled” with medication, and that Plaintiff’s testimony that it was “always high”,
is contradicted by consistent in-office readings within the normal range. (R. 32-33). On
the other hand, having also determined CFS to be a severe impairment, i.e. one that
“imposes significant restrictions in the ability to perform basic work activities” (R. 22),
the ALJ should not have given such weight to the lack of physical findings to undermine
Plaintiff’s credibility. See Fragale, 916 F.Supp. at 254-255; Green-Younger, 335 F.3d at
108; see also Rose v. Shalala, 34 F.3d 13, 17, 19 (1st Cir. 1994) (“Given the
uncontroverted medical evidence that claimant suffered from CFS, however, blind
reliance on a lack of objective findings is wholly inconsistent with the Secretary’s
policy….”); but see Squires v. Colvin, No. 13-CV-861S, 2014 WL 4269054, at *5
(W.D.N.Y. Aug. 29, 2014) (finding that despite Plaintiff’s complaints of fatigue in the
record, absent a medical diagnosis, “the only determination to be made was one of
credibility”).
12.
In addition, to the extent the ALJ relied on inconsistencies in treatment
notes from Plaintiff’s primary care physician, Dr. Karaszewski, to discredit Plaintiff’s
allegations, his analysis appears flawed. The Court finds that those notes in particular
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are somewhat uninformative, internally contradictory, and primarily related to visits for
Plaintiff’s hypertension. For example, the ALJ relied on a treatment note dated March
21, 2011, a visit for a “recheck of hypertension” (R.367), stating that “Dr. Karaszewski
again cited Ms. Smiley with similar denials of symptoms as mentioned in earlier records
and reported mostly the same findings” as in previous examinations. (R. 31). The ALJ
noted that while Plaintiff “denied leg swelling, this record still contained an assessment
of swelling of limbs and the doctor recommended elevation of legs and decreased salt
intake.” (R. 31). Independent review of the record reveals that the note also states that
Plaintiff “denies angina, arrhythmia, chest discomfort, pressure …”, yet in the
assessment section Patient is referred to a Dr. Matthews for “Pain Chest Unspec.” (R.
367-368). Similarly, the note indicates that Plaintiff denies insomnia, yet insomnia is
noted in the assessment section, and Dr. Karaszewski prescribed a new medication,
Zolpidem Tartrate, for the condition.
(R. 368).
The Court finds analogous
inconsistencies in other notes, including September 3, 2010 (R. 334; “denied” leg
swelling, but diagnosed with Swelling of Limb and prescribed pain medication) and
January 24, 2012 (R. 383; “denied” depression, but diagnosed with Depressive Disorder
and prescribed medication). Moreover, it is clear from the record that rheumatologists
Dr. Michalski and Dr. Dhillon informed Dr. Karaszewski that Plaintiff was receiving
treatment from and taking medication prescribed by those providers for her lupus-type
symptoms. (See, e.g., R. 417, 304; R. 326, 397). No conclusions can be drawn about
whether Dr. Karaszewski’s notes stating Plaintiff “denied” various alleged symptoms are
based on lack of findings and complaints, based on lack of relevance to her
hypertension visits, or because treatment for her difficult to diagnose symptoms was
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being handled by a rheumatologist.
The Court finds that, rather than undercutting
Plaintiff’s subjective complaints of pain and fatigue, these ambiguous treatment notes
create a gap in the record, which the ALJ did not attempt to clarify. See Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
13.
The ALJ determined that Plaintiff had the RFC to “perform the exertional
demands of a full range of light work except for having a sit/stand option every thirty
minutes.” (R. 28). He based this determination on “the totality of the record,” including
Plaintiff’s “statements and testimony about her ability to perform activities of daily living,”
medical opinions of Plaintiff’s treating physicians, and an assessment by the State
Agency medical consultant. (R. 28).
An individual’s RFC is his or her “maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis.” Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96–8p, 1996 SSR LEXIS 5 at *5,
1996 WL 374184, at *2 (July 2, 1996)). In making an RFC assessment, the ALJ should
consider “a claimant’s physical abilities, mental abilities, symptomology, including pain
and other limitations which could interfere with work activities on a regular and
continuing basis.” Pardee v. Astrue, 631 F.Supp.2d 200, 221 (N.D.N.Y. 2009) (citing 20
C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental abilities, nonsevere impairments, and [p]laintiff’s subjective evidence of symptoms.”
Stanton v.
Astrue, No. 07–CV–803, 2009 U.S. Dist. LEXIS 130826, 2009 WL 1940539, *9
(N.D.N.Y. June 4, 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff'd, 370 Fed. Appx. 231
(2d Cir. 2010).
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14.
Initially, a plaintiff “‘need not be an invalid to be found disabled’ under the
Social Security Act.”
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting
Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988). Plaintiff’s statements that she
tends to her own personal hygiene, prepares meals three to four times a week, goes
food shopping once or twice a month, and attends her children’s school activities about
four times per month, hardly undermine her testimony that she lies in bed most of the
time, takes multiple hot baths daily to relieve her pain. (R. 207). In fact, she reported
that after going shopping it takes her a day or two to recover. (R. 201, 206).
15.
The ALJ also gave “great weight” to the opinion of a non-examining State
agency medical consultant in both discrediting Plaintiff’s allegations and assessing her
RFC. (R. 31). The medical consultant reviewed Plaintiff’s records on March 11, 2011,
and found that there was no evidence of joint abnormalities or current lupus flare. (R.
338). The consultant also noted that Plaintiff “complains mainly of fatigue,” and that she
“drives and takes care of her personal hygiene.” (Id.). From this, he concluded that
Plaintiff “should be able to walk 6 hrs. and to lift 20 lbs. occ[asionally], 10 lbs.
freq[uently]/8 hour workday with environmental restrictions.” (R. 338). As discussed
above, discrediting Plaintiff’s subjective complaints of pain and fatigue based on lack of
objective supporting evidence is particularly contrary to medical and legal standards
when considering CFS. See Fragale, 916 F.Supp. at 254-255; see also Hallgring v.
Callahan, 975 F. Supp. 84, 91-92 (D.Mass. 1997) (contrary opinion of non-examining
source was not entitled to much weight because “[t]he subjective severity of a claimant’s
fatigue associated with CFS is not something readily evaluated on an algid
administrative record”)(quoting Rose, 34 F.3d at 19).
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16.
In support of his analysis, the ALJ also noted that the record contains no
medical opinions indicating Plaintiff’s exertional functional capacity is lower than the
RFC, and that none of her doctors stated that Plaintiff was disabled or totally
incapacitated. (R. 32). While accurate, the Court finds that the record “contains neither
a physical RFC assessment nor a medical source statement pertaining to Plaintiff’s
physical capabilities, let alone one from a treating source. When critical record voids
exist, an ALJ is duty bound to take measures to complete the record and fill the
perceived gaps.” Lawton v. Astrue, No. 108-CV-0137 LEK/DEP, 2009 WL 2867905, at
*16 (N.D.N.Y. Sept. 2, 2009) (finding “no basis upon which the court can find that
substantial evidence supports the ALJ’s light work RFC determination”) (citing Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996); Echevarria v. Sec’y of Health and Human Servs.,
685 F.2d 751, 755 (2d Cir. 1982)).
None of Plaintiff’s physicians addressed her
limitations, or lack of limitations, due to pain and fatigue, nor is there evidence that the
ALJ requested a functional assessment.
See Rosa v. Callahan, 168 F.3d 72, 81 (2d
Cir. 1999) (ALJ’s conclusion flawed where medical reports were consistent with
Plaintiff’s RFC “only to the extent that they were silent on the issue”).
The Court
likewise acknowledges that no physician suggested Plaintiff was disabled; however, this
justification is unpersuasive, because it is likely that the ALJ would not have given much
weight to such statement, had one appeared in the record, as that is a determination
reserved for the Commissioner. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); 20
C.F.R. § 404.1527(e)(1).
17.
Given the non-adversarial nature of the disability proceedings, the Court
finds that the inconsistent and undetailed treatment notes, in addition to the general
12
silence regarding Plaintiff’s work-related abilities create a gap, which the ALJ failed to
fill. Shaw, 221 F.3d at 131. While it is possible that substantial evidence supports the
finding of non-disability, because of the nature of this Plaintiff’s “severe” condition, and
because of ambiguities in the record, the Court finds that the Plaintiff did not have the
benefit of her case being adjudicated according to the correct legal standards. Schaal
v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). Nowhere is it apparent that the ALJ asked
for clarification, and because he specifically rejected Plaintiff’s complaints for lack of
objective clinical findings, the Court finds an error of law and will remand the decision
for clarification of the record and corresponding credibility analysis.
18.
After carefully examining the record, this Court finds cause to remand this
case to the ALJ for further administrative proceedings consistent with this decision.
Defendant’s Motion for Judgment on the Pleadings is therefore denied.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the
Pleadings (Docket No. 11) is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this Decision and Order.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated: October 8, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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