Mack v. Commissioner of Social Security
Filing
17
DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. Plaintiff's complaint is dismissed in its entirety with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 5/6/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
THOMAS MACK, JR.,
Plaintiff,
1:18-cv-00265-MAT
DECISION AND ORDER
-vCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Thomas Mack, Jr. (“Plaintiff”), represented by counsel, brings
this action under Title XVI of the Social Security Act (“the Act”)
seeking review of the final decision of the Commissioner of Social
Security
(“the
Commissioner”
or
“Defendant”)
denying
his
application for Supplemental Security Income (“SSI”). The Court has
jurisdiction over the matter pursuant to 42 U.S.C. § 1383(c).
Presently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules
of
Civil
Procedure.
For
the
reasons
set
forth
below,
Plaintiff’s motion is denied, and Defendant’s motion is granted.
PROCEDURAL BACKGROUND
On
August
11,
2014,
Plaintiff
protectively
filed
an
application for SSI, alleging disability as of March 6, 2014, due
to major depressive disorder and posttraumatic stress disorder
(“PTSD”).
Administrative
initially
denied on
June
Transcript
24,
2014.
(“T.”)
T.
56.
68-78.
The
At
claim
was
Plaintiff’s
request, a video hearing was conducted on July 8, 2016, in Falls
Church, Virginia, by administrative law judge (“ALJ”) Rosanne M.
Dummer
with
Plaintiff
appearing
with
his
attorney
via
video
conference in Seneca, New York. A vocational expert (“VE”) also
testified. T. 30-54. The ALJ issued an unfavorable decision on
August 3, 2016. T. 9-29. Plaintiff appealed the decision to the
Appeals Council, which denied Plaintiff’s request for review on
December
21,
2017,
making
the
ALJ’s
decision
the
final
determination of the Commissioner. T. 1-4. This action followed.
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 416.920(a).
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the
application date. T. 14.
At
step
following
two,
“severe”
obstructive
sleep
the
ALJ
determined
impairments:
apnea,
that
Plaintiff
degenerative
depression,
disc
anxiety,
and
had
the
disease,
alcohol
dependence. Id. The ALJ also noted the record contained reference
to hypertension, gastroesophageal reflux disease (“GERD”), and
attention deficit hyperactivity disorder (“ADHD”). However, the ALJ
determined that Plaintiff’s hypertension and GERD were medically
managed and
would
not
cause
more than
a
slight
work-related
limitation and thus were non-severe. The ALJ further found that
2
Plaintiff had not been formally tested for ADHD and thus ADHD was
not a medically determinable impairment. Id.
At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 20. The ALJ specifically considered
Listing 1.04 (Disorders of the Spine), Listing 3.10 (Sleep-related
Breathing
Disorders),
Listing
12.04
(Depressive,
Bipolar
and
Related Disorders), Listing 12.06 (Anxiety and Obsessive-Compulsive
Disorders), and Listing 12.09 (Substance Addiction Disorders).
T. 14-16.
Before proceeding to step four, the ALJ found that Plaintiff
retained
medium
the
work
residual
as
defined
functional
in
20
capacity
C.F.R.
§
(“RFC”)
to
416.967(c),
perform
with
the
following limitations: can lift/carry fifty pounds occasionally and
twenty-five pounds frequently; can sit approximately six of eight
hours; can stand or walk approximately six of eight hours; can
occasionally climb, balance, stoop, kneel, crouch and crawl; should
avoid work hazards (i.e., unprotected heights and dangerous moving
machinery);
instructions
can
understand,
commensurate
remember,
with
and
unskilled
carry
work;
out
can
simple
sustain
attention and concentration for two-hour segments of time during an
eight-hour workday; can tolerate brief and superficial contact with
others; and can adapt to changes in the work place for simple
unskilled work. T. 16.
3
At step four, the ALJ concluded that Plaintiff was unable to
perform his past relevant work as a dishwasher/kitchen helper or
recycler. T. 23.
At step five, the ALJ relied on the VE’s testimony to find
that,
taking
experience,
into
and
account
RFC,
there
Plaintiff’s
are
age,
unskilled
education,
jobs
that
work
exist in
significant numbers in the national economy that Plaintiff can
perform, including the medium level representative occupations of
dining room attendant, janitor, and laundry worker; the light level
representative occupations of routing clerk, retail marker, sorter,
electronic assembler, mail sorter, and press tender; and the
sedentary level representative occupations of mail sorter, table
worker, and eyeglass polisher. T. 24. The ALJ accordingly found
that Plaintiff was not disabled as defined by the Act. T. 25.
SCOPE OF REVIEW
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
4
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
The
reviewing
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review
for
substantial
evidence
does
not
apply
to
the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172,
179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons:
(1)
the
physical
RFC
finding
is
not
supported
by
substantial evidence because it is not supported by any competent
medical opinion; and (2) the mental RFC finding is affected by
legal error because the ALJ failed to adequately evaluate the
individualized nature of Plaintiff’s stress.
I.
The Physical RFC Finding Is Supported By Substantial Evidence
Plaintiff argues the physical portion of the RFC finding is
unsupported by substantial evidence because there is no “competent”
medical
opinion
of
record
pertaining
to
Plaintiff’s
physical
limitations on which the ALJ could rely. Plaintiff further argues
the ALJ
erred
by
not
ordering
a
consultative
examination
to
evaluate Plaintiff’s physical limitations, in light of the lack of
5
suitable opinion evidence. For the reasons set forth below, the
Court finds Plaintiff’s argument lacks merit.
A.
The Evidence of Record Pertaining to Plaintiff’s Physical
Impairments
Plaintiff first applied for SSI alleging disability due to
major
depressive
disorder
and
posttraumatic
stress
disorder
(“PTSD”). T. 56. During the initial application process, Plaintiff
completed a Function Report dated April 25, 2014. T. 170-80.
Notably, he detailed limitations stemming from his alleged mental
impairments and his activities of daily living. In the section
pertaining to abilities affected by physical limitations, Plaintiff
wrote “N/A” next to every ability. T. 175-76. Accordingly, during
the initial application process, the Social Security Administration
(“SSA”) obtained Plaintiff’s mental health records and ordered a
consultative psychiatric evaluation. See T. 57-58. A physical
consultative
examination
was
not
ordered
and
medical
records
pertaining to Plaintiff’s physical condition were not sought.
Following
the
administrative
initial
hearing,
denial
of
Plaintiff
benefits
submitted
and
prior
several
to
years
the
of
medical records from his primary care provider, Lifetime Health
Medical Group. See T. 380-520, 532-52.
At the administrative hearing held on July 8, 2016, Plaintiff
testified that he recently started having back problems that were
serious enough to interfere with his ability to work. T. 35. He
testified that he was taking Norco for his back pain and that his
6
doctor recommended physical therapy, but it made his pain worse.
T. 37. Plaintiff testified he was able to walk between two and five
minutes at a time before feeling sharp pain in his back; he could
stand for approximately five minutes before needing to sit down.
Id. Plaintiff testified his back pain was limited to his lower
back, but at times he also had numbness in his right leg. T. 41.
Plaintiff further testified sitting caused him immediate pain.
T. 42. Plaintiff testified he was able to crouch and change
positions without much difficulty, though he had some difficulty
bending to the floor when he was in pain. T. 42-43. At the
completion of the hearing, Plaintiff’s attorney noted that there
was no medical opinion of record assessing Plaintiff’s physical
limitations
and
suggested
one
would
be
necessary
to
make
a
determination on Plaintiff’s functional capacity. T. 53.
Following the hearing, Plaintiff submitted a letter from his
primary
care
provider,
Physician’s
Assistant
(“PA”)
Michael
Brynildsen dated April 8, 2015. The letter stated, “To whom it may
concern, Due to his current conditions, [Plaintiff] cannot due
[sic] any physical task or job. If you require any additional
information please do not hesitate to contact our job [sic].”
T. 723-24.
In her decision, the ALJ found that PA Brynildsen’s opinion
was entitled to “minimal” weight. T. 22. The ALJ reasoned that the
opinion was conclusory, provided no explanation of the evidence it
relied on, and was inconsistent with PA Brynildsen’s own treatment
7
notes. Id. In particular, the ALJ noted that PA Brynildsen’s
treatment notes showed full strength in Plaintiff’s bilateral lower
extremities and negative straight leg raising tests. Id. referring
to T. 506, 536, 546, 551.
In addition to assessing PA Brynilsen’s opinion, the ALJ
provided
a
thorough
summary
of
Plaintiff’s
lower
back
pain
treatment in her decision. See T. 18-20. Plaintiff first complained
of back pain in September 2014. Treatment provider PA Michele Nanni
assessed sciatica and advised Plaintiff to rest and apply ice
and/or heat treatment. Plaintiff declined muscle relaxers and
PA Nanni provided a referral to physical therapy. T. 392. In
October 2014, Plaintiff attended physical therapy. Plaintiff’s
lumbar range of motion was full in nearly all directions and he was
assessed as having excellent rehabilitation potential. T. 397-98.
At a follow-up appointment with PA Nanni in October 2014, Plaintiff
reported he did not notice much improvement from physical therapy
and admitted he was not doing the home exercises and stretches.
T. 400.
On January 13, 2015, Plaintiff reported continued back pain to
PA Brynildsen, who assessed lumbar radiculopathy and prescribed
tramadol and gabapentin. T. 411-13. On January 19, 2015, Plaintiff
was discharged from physical therapy due to noncompliance. The
physical
therapist
noted
his
T.
In
2015,
PA
417.
June
discharge
Brynildsen
prognosis
prescribed
was
“good.”
Norco
for
Plaintiff’s back pain and referred him to a neurosurgeon. T. 4538
56. At a neurology consultation, Plaintiff showed tenderness to
palpation in the right sacroiliac joint and decreased sensation in
the right thigh. Straight leg raise tests were positive on the
right side. The examining nurse practitioner opined Plaintiff’s
pain was related to changes in his right hip joint and referred him
to pain management. T. 463-64. As of October 2015, Plaintiff had
not followed through with pain management and was noncompliant with
several medications including Citalopram, Clonazepam, Flexeril, and
Metoprolol Succinate. T. 485-86. In March 2016, PA Brynildsen noted
that Plaintiff’s chronic low back pain was secondary to his weight
and that Plaintiff needed to work on weight loss. He also noted
Plaintiff reported he had no improvement from pain management and
had not followed up with neurosurgery. T.533-34.
In April 2016, Plaintiff began physical therapy with Amherst
Orthopedic
Physical
Therapy,
but
attended
only
two
sessions.
Plaintiff reported he did not complete his home exercises and was
not attending sessions due to scheduling issues. T. 542. On May 23,
2016, Plaintiff was discharged after four no-shows. The physical
therapist noted that Plaintiff was no longer making progress toward
functional
goals
and
there
was
no
expectation that
he would
progress toward those goals. T. 543.
The ALJ also noted multiple objective findings in her decision
pertaining to Plaintiff’s back pain. See T. 20. A January 2015
lumbar study showed a mild disc bulge. T. 419. An August 2015
lumbar study showed a small disc herniation at L5-S1 with left
9
neuroforaminal
stenosis
without
any
significant
spinal
cord
impingement. T. 464. An August 2015 MRI of the pelvis showed
angulation at the sacrococcygeal junction, representing possible
old posttraumatic change and a tiny hernia containing fat. T. 470.
Several physical exams showed some tenderness in the lower back
with
full
strength
and
negative
straight
leg
raising
tests
bilaterally. T. 426, 501. Ultimately, the ALJ found that the
overall evidence of record did not support the degree of functional
limitations Plaintiff alleged and imaging was not suggestive of
work-precluding limitations. T. 20.
B.
When
The ALJ Permissibly Made A Common Sense Judgment About
Plaintiff’s RFC
assessing
a
disability
claim,
an
ALJ
has
the
responsibility of determining a claimant’s RFC based on all of the
relevant medical and other evidence of record. See 20 C.F.R.
§§ 416.927(d)(2), 416.945(a), 416.946(c); Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999) (the ultimate responsibility to determine
a claimant’s RFC rests solely with the ALJ). An RFC finding need
not correspond to any particular medical opinion; rather, the ALJ
must weigh and synthesize all evidence available to render an RFC
finding that is consistent with the record as a whole. Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013); see also Rosa v.
Callahan, 168 F.3d 72, 29 (2d Cir. 1999) (“the ALJ’s RFC finding
need not track any one medical opinion”). Furthermore, where
“medical evidence shows relatively minor physical impairment, an
10
ALJ permissibly can render a common sense judgment about functional
capacity even without a physician’s assessment.” Glena v. Colvin,
No. 1:15-cv-00510(MAT), 2018 WL 739096, at *4 (W.D.N.Y. Feb. 6,
2018) (internal citation and quotation marks omitted).
Although
the
ALJ
found
that
Plaintiff
has
“severe”
impairments, the treatment notes and recommendations provided by
Plaintiff’s treatment providers regarding his physical impairments
do not reflect disabling functional limitations and thus, it was
not impermissible for the ALJ to render a common sense judgment
regarding Plaintiff’s physical functional limitations. See Glena,
2018 WL 739096, at *5. The ALJ noted mild imaging findings,
consistent examinations showing full strength and nearly full range
of motion in all areas, and repeated instances of Plaintiff’s
noncompliance with treatment recommendations, physical therapy, and
medications. T. 20. Notably, Plaintiff’s physical therapy providers
assessed him as having excellent rehabilitation potential, provided
that he continue physical therapy. Furthermore, the ALJ noted that
no
treatment
provider
expressed
any
overt
concern
regarding
Plaintiff’s physical impairments other than Plaintiff’s need to
lose weight, restrict calories, and increase physical activity.
T.
21.
Courts
have
found
that
a
claimant’s
receipt
of
only
conservative treatment, or decision to not seek treatment, can
undermine the credibility of the claimant’s subjective complaints.
Glena, 2018 WL 739096 at *5 (citing Lovell v. Colvin, 137 F.
Supp.3d
347,
354
(W.D.N.Y.
2015)
11
(finding
that
claimant’s
“particularly conservative medical treatment for both his back
condition and psychological disorder indicates that [he] is not as
restricted as he claims”)). Accordingly, the Court finds that the
ALJ had ample evidence available to her to render a commons sense
judgement regarding Plaintiff’s physical limitations and functional
abilities, and further finds that her physical RFC finding is
supported by substantial evidence.
The Court also does not find that the ALJ committed legal
error by determining that a consultative physical examination was
not necessary. See id. (ALJ did not commit legal error where the
medical evidence, combined with plaintiff’s statements, indicated
relatively mild physical impairment, allowing the ALJ to make an
RFC assessment without an expert medical opinion). Accordingly, the
Court finds that remand is not warranted on this basis.
II.
The Mental RFC Finding Is Supported by Substantial Evidence
Plaintiff further contends that the mental portion of the RFC
finding is unsupported by substantial evidence because the ALJ did
not specifically evaluate the individualized nature of Plaintiff’s
ability to handle stress. For the reasons set forth below, the
Court finds this argument lacks merit.
A.
The Opinion of Consultative Examiner Dr. Gregory Fabiano
On June 16, 2014, Plaintiff underwent a psychiatric evaluation
by consultative examiner Dr. Gregory Fabiano. T. 334-38. Plaintiff
reported he is able to dress, bathe, and groom himself; cook and
prepare food; do general cleaning; do laundry; shop; and take
12
public transportation. T. 336. He reported he can “sort of” manage
money. He reported he has “only one” friend and that his family
relationships are “not good.” Plaintiff reported lying in bed if he
does not have group therapy sessions. T. 337.
Upon examination, Plaintiff’s demeanor and responsiveness to
questions was cooperative. His manner of relating, social skills,
and overall presentation were adequate. Plaintiff appeared well
groomed, casually dressed, and exhibited appropriate eye contact.
T. 335. Plaintiff’s speech was fluent, his thought processes were
coherent and goal directed and he was oriented to person, place,
and time. He presented a flat affect and neutral mood. Dr. Fabiano
noted that Plaintiff’s attention and concentration were mildly
impaired,
perhaps due
to some
anxiety
or
nervousness
in
the
evaluation. He was able to complete counting tasks and simple
calculations, but he did not attempt the serial threes task.
T. 336. Plaintiff’s recent and remote memory skills were impaired.
He was able to recall two of three objects immediately and one of
three objects after five minutes. Dr. Fabiano speculated this may
have been due to Plaintiff’s emotional distress secondary to his
depressed
mood.
Plaintiff’s
intellectual
functioning
appeared
average with a somewhat limited general fund of information.
Dr. Fabiano reported Plaintiff had good insight and judgment. Id.
Dr. Fabiano opined that Plaintiff did not appear to have any
limitations
in
his
ability
to
follow
and
understand
simple
directions and instructions, perform simple tasks independently,
13
maintain a regular schedule, learn new tasks, perform complex tasks
independently, and make appropriate decisions. T. 337. Plaintiff
had mild limitations in his ability to maintain attention and
concentration
and
relate
adequately
with
others.
Dr.
Fabiano
further opined that Plaintiff appeared to have moderate limitations
in his ability to appropriately deal with stress due to psychiatric
symptoms. Dr. Fabiano opined the results of the examination were
consistent with psychiatric problems, but in itself, that did not
appear to be significant enough to interfere with Plaintiff’s
ability to function on a daily basis. Id.
In her decision, the ALJ gave Dr. Fabiano’s opinion “some”
weight. T. 22. The ALJ noted that the overall record does not
corroborate work-precluding mental limitations and that the mental
status examination was essentially normal with the exception of
mild memory, attention, and concentration problems. T. 23.
B.
The ALJ Had No Duty to Specifically Evaluate
Individualized Nature of Plaintiff’s Stress
the
Plaintiff does not take issue with the ALJ’s weighing of
Dr. Fabiano’s opinion, which included a moderate limitation in his
ability to appropriately deal with stress. However, Plaintiff does
dispute the ALJ’s lack of specific analysis pertaining to the
nature of Plaintiff’s stress and the circumstances that trigger it.
To support his argument, Plaintiff relies on Stadler v. Barnhart,
464 F. Supp.2d 183, 188-89 (W.D.N.Y. 2006) (“Because stress is
‘highly individualized,’ mentally impaired individuals ‘may have
14
difficulty meeting the requirements of even so-called ‘low-stress’
jobs,’ and the Commissioner must therefore make specific findings
about the nature of a claimant’s stress, the circumstances that
trigger it, and how those factors affect his ability to work.”)
(citing Social Security Ruling (“SSR”) 85-15 (S.S.A.), 1985 WL
56857 at *6 (1985)). In response, the Commissioner argues that the
ALJ had no duty to further evaluate Plaintiff’s stress because she
did not adopt Dr. Fabiano’s opinion in its entirety and only gave
it “some” weight. For the reasons discussed below, the Court finds
no error with the ALJ’s mental RFC finding or assessment of
Plaintiff’s ability to handle stress.
In the RFC finding, the ALJ determined that secondary to his
mental
impairments,
Plaintiff
was
capable
of
understanding,
remembering, and carrying out simple instructions commensurate with
unskilled work; sustaining attention and concentration for two-hour
segments of time during an eight-hour workday; tolerating brief and
superficial contact with others; and adapting to changes in the
workplace for simple unskilled work. T. 16. The ALJ noted that her
inclusion of brief and superficial contact with others, unskilled
work, and the ability to sustain concentration and attention for
two-hour
segments
of
time
accounted
for
Plaintiff’s
mental
impairments and was favorable to Plaintiff. T. 23. Furthermore, the
ALJ noted that Plaintiff’s medical records reflected a treatment
regimen that was consistent with the RFC finding. Id.
15
The Court finds the ALJ’s determination was supported by
substantial
evidence
in
the
record
that
Plaintiff’s
mental
impairments cause no more than mild limitations in his ability to
handle stress. In February 2015, Plaintiff was discharged from
mental
health
treatment
for
noncompliance
and
“very
spotty”
attendance. T. 718, 721. In late 2015 and 2016, Plaintiff was
discharged from treatment because he refused alcohol counseling and
did not take medications as prescribed. T. 376, 524-25. The ALJ
specifically found that no evidence suggested that Plaintiff’s
mental impairments were the cause for him failing to seek or
continue
treatment.
T.
21.
Consequently,
the
ALJ
reasonably
considered Plaintiff’s failure to pursue treatment as evidence
tending to show his mental impairments and limitations were not as
significant as he claimed. T. 21. Neither of these findings were
challenged by Plaintiff on appeal.
Moreover,
the
stress-related
limitations
described
by
Dr. Fabiano appear to conflict with his findings elsewhere in his
opinion,
where
Dr.
Fabiano
observed
that
Plaintiff
was
mood-neutral, oriented and cooperative and that his attention and
concentration were no more than mildly impaired. See T. 335-36.
Plaintiff’s reliance on Stadler, 464 F. Supp.2d at 188-89, for
support of his argument that the ALJ committed legal error by not
further
assessing
plaintiff
his
submitted
an
stress
RFC
is
misplaced.
opinion
prepared
In
Stadler,
by
his
the
treating
psychiatrist to the Appeals Council while his appeal of the ALJ’s
decision was pending. The opinion stated that the plaintiff had a
16
marked impairment in his ability to respond appropriately to
supervision and that his condition would likely to deteriorate if
he were placed under stress. In its decision, the Appeals Council
failed to discuss the contents of the RFC opinion, and instead only
noted that the opinion had been received and that it did not
provide a basis for changing the ALJ’s decision. See id. Here, in
contrast, the ALJ fully evaluated and discussed Dr. Fabiano’s
opinion and provided a thorough assessment of Plaintiff’s mental
impairments, treatment history, and the objective findings of
record. Accordingly, the Court finds that the ALJ adequately
evaluated the functional limitations associated with Plaintiff’s
mental impairments, including his ability to deal with stress. The
Court
further
finds
the
RFC
determination
is
supported
by
substantial evidence and thus, remand is not warranted.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 7) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 12) is granted.
Plaintiff’s complaint is dismissed in its entirety with prejudice.
The Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
May 6, 2019
Rochester, New York
17
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