OWENS-WILLIAMS v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. Patrick Auld, signed on 12/30/2016. It is RECOMMENDED that the Commissioner's decision finding no disability be vacated, and that he matter be remanded under sentence fo ur of 42 U.S.C. § 405(g), for further administrative proceedings. Plaintiff's Motion for Judgment on the Pleadings 10 should be granted in part, and Defendant's Motion for Judgment on the Pleadings 12 should be denied. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHEILA OWENS-WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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)
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1:16CV453
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sheila Owens-Williams, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Memorandum);
Docket
Entry
13
(Defendant’s
(Plaintiff’s Response)).
Memorandum);
Docket
Entry
14
For the reasons that follow, the Court
should remand this matter for further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging an onset date of September
14, 2012. (Tr. 166-71.) Upon denial of that application initially
(Tr. 72-85, 101-04) and on reconsideration (Tr. 86-100, 107-110),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 113-16).
the hearing.
(Tr. 44-71.)
Plaintiff and her attorney attended
The ALJ subsequently ruled that
Plaintiff did not qualify as disabled under the Act.
(Tr. 27-39.)
The Appeals Council thereafter denied Plaintiff’s request for
review
(Tr.
1-7),
thereby
making
the
ALJ’s
ruling
the
Commissioner’s final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2017.
2.
[Plaintiff] has not engaged in substantial gainful
activity since September 14, 2012, the alleged onset
date.
3.
[Plaintiff] has the following severe impairments:
bilateral sensorineural hearing loss; osteoarthritis of
the left knee; arthropathy of the lower lumbar spine;
osteoarthritis of the right hip; and obesity.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . with exceptions:
She can occasionally stoop, kneel, or crawl. She must
avoid concentrated exposure to workplace hazards. She
can frequently interact with supervisors, coworkers, and
the public.
. . .
2
6.
[Plaintiff] is capable of performing past relevant
work as a certified medical technician. This work does
not require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from September 14, 2012, through
the date of this decision.
(Tr.
32-39
(bold
font
and
internal
parenthetical
citations
omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported
by
substantial
evidence
3
and
were
reached
through
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
“Substantial
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is
substantial
evidence.”
Hunter,
993
F.2d at
34
(internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
4
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
1
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations
omitted).
5
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
(continued...)
6
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
3
(...continued)
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
(1) “[t]he ALJ erred by failing to assess the effect of
Plaintiff’s hearing loss on the RFC when she is unable to wear her
hearing aide(s)” (Docket Entry 11 at 4 (bold font omitted)); and
(2) “[t]he ALJ erred by admitting bilateral sensorineural
hearing loss was a [severe impairment] but failing to explain how
work related limitations for this condition were included in the
RFC” (id. at 7).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 13 at 3-10.)
1. Impact of Ear Infections on RFC
In Plaintiff’s first assignment of error, she contends that
the ALJ failed to assess the impact of Plaintiff’s ear infections
(and, more particularly, her resulting inability to wear hearing
aids) on the RFC.
(See Docket Entry 11 at 4-7.)
Plaintiff
the
faults
consultative
examiner
ALJ
Dr.
for
“misread[ing]”
Amon
audiologist Dr. Pamela G. Houck.
Plaintiff
emphasizes
that,
L.
In that regard,
the
Funderburk
(Id. at 4.)
although
the
ALJ
opinions
and
of
treating
Specifically,
relied
on
Dr.
Funderburk’s opinion that Plaintiff did not have any “communicative
. . . limitations when using her hearing aids” (Tr. 264) to support
the RFC determination (see Tr. 37), Dr. Funderburk did not assess
Plaintiff’s communicative abilities when she could not wear hearing
aids. (Docket Entry 11 at 5 (citing Tr. 261-62, 264).)
8
Similarly,
Plaintiff notes the ALJ’s reliance on the opinion of Dr. Houck that
Plaintiff “has significant difficulty discerning conversational
speech when she wears hearing aids” (id. at 4 (emphasis added); see
also Tr. 37, 305), but argues that “it is apparent from Dr. Houck’s
opinion that she felt [Plaintiff’s] hearing difficulties were
significantly exacerbated when she was unable to wear her hearing
aids during an ear infection” (Docket Entry 11 at 5 (emphasis
added) (referencing Tr. 305).)
Plaintiff points out that Dr.
Houck’s opinion finds consistency with Plaintiff’s function report
in which she reported, “I have frequent ear infection[s] and when
I do I can’t even put aides in due to drainage, [and] then I am
just deaf” (id. (quoting Tr. 197)), and with Plaintiff’s hearing
testimony that she removed her hearing aids when she had an ear
infection, and that such infections occurred at least two to three
times per year and lasted about four to five days each (id. at 6
(citing Tr. 48, 50, 60)).
Plaintiff further emphasizes that, because the ALJ included
non-exertional limitations in the RFC, he should have called a
vocational expert (“VE”) to testify regarding the impact of those
limitations, and Plaintiff’s inability to wear hearing aids during
ear infections, on the available jobs.
(Id. at 6.)
Plaintiff
notes that “VE’s routinely testify . . . that more than one
unscheduled absence per month precludes competitive employment and
per [Plaintiff’s] testimony, 15 days or more per year, she would
9
have profound hearing loss (being without her hearing aids).” (Id.
(citing Salyers v. Commissioner of Soc. Sec., No. 2:12CV00014, 2013
WL 4929141, at *2 (W.D. Va. Sept. 12, 2013) (unpublished) (Dist. J.
adopting recommendation of Mag. J.), and Sweeney v. Apfel, No.
CIV.AW-97-1631, 1998 WL 526579, at *3 (D. Md. Jan. 23, 1989)
(unpublished).)
Plaintiff’s arguments have merit and warrant
remand.
Here, the ALJ’s RFC determination fails to address the impact
of Plaintiff’s ear infections on her ability
to hear.5
Dr.
Funderburk did not address Plaintiff’s ability to hear without
hearing aids (see Tr. 260-64) and, thus, the ALJ’s crediting of
that opinion (see Tr. 37) does not satisfy the ALJ’s duty of
5
The parties dispute whether the ALJ properly found Plaintiff’s ear infections
a non-severe impairment. (See Docket Entry 13 at 9; Docket Entry 14 at 1-2; see
also Tr. 34.) Plaintiff maintains that her recurrent ear infections constitute
a severe impairment, because to establish a severe impairment, “[a] claimant
‘does not have to show a twelve-month period of impairment unmarred by any
symptom-free interval.’” (Docket Entry 14 at 1 (quoting Singletary v. Bowen, 798
F.2d 818, 821 (5th Cir. 1986).) In contrast, Defendant asserts that the ALJ
properly found Plaintiff’s ear infections a non-severe impairment, because “they
only occurred two or three times per year and lasted only four or five days” and
“[a] ‘severe’ impairment must meet the duration requirement and must have lasted
or . . . be expected to last for a ‘continuous’ period of at least 12 months.”
(Docket Entry 13 at 9 (citing 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), and
Walton v. Barnhart, 535 U.S. 212, 225 (2002).) The Court need not resolve this
dispute, because the ALJ here found other severe impairments at step two of the
SEP and therefore had a duty to consider all of Plaintiff’s impairments, both
severe and non-severe, in formulating the RFC.
See Perry v. Colvin, No.
2:15-CV-01145, 2016 WL 1183155, at *4–5 (S.D.W. Va. Mar. 28, 2016) (unpublished)
(“In any case involving a medical impairment severe enough to survive step two,
an ALJ is required to consider all of a claimant’s impairments, whether severe
or non-severe, when determining RFC.”); Singleton v. Astrue, C/A No.
9:08-1892-CMC-BM, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009) (unpublished)
(remarking that where claimant “makes a threshold showing of any ‘severe’
impairment, the ALJ continues with the sequential evaluation process and
considers all impairments, both severe and nonsevere” (citation omitted)); 20
C.F.R. § 404.1545(e) (“[W]e will consider the limiting effects of all your
impairment(s), even those that are not severe, in determining your [RFC].”).
10
explanation regarding whether the RFC should include limitations
arising from Plaintiff’s inability to wear hearing aids during ear
infections.
Similarly, Defendant argues that the ALJ accorded
great weight to the opinion of state agency physician, Melvin L.
Clayton, M.D., that, due to Plaintiff’s hearing loss, she should
avoid concentrated exposure to workplace hazards.
Entry 13 at 8 (citing Tr. 38, 94-96).)
(See Docket
However, Dr. Clayton also
did not expressly address Plaintiff’s ability to hear when she
cannot wear her hearing aids because of an ear infection. (See Tr.
94-96.)
In contrast, Dr. Houck did specifically address the impact of
Plaintiff’s recurrent ear infections on her ability to wear hearing
aids:
[Plaintiff] has a history of chronic ear infections,
which interfere[] with her ability to wear amplification.
She frequently can only wear one aid at a time due to
these infections as the drainage gets in the aids and
clogs them up. When she is home she often doesn’t wear
the aids at all so that air can get to her ears and
hopefully dry them out. Unfortunately use o[f] hearing
aids compounds the problem with the chronic infections as
it creates a warm moist environment which breeds
infections. This hearing loss has caused her a great
deal of anxiety and depression due to the loss of ability
to communicate. This has led to loss of employment and
social isolation. This hearing loss prevents her from
communicating in virtually all environments and makes it
difficult for her to obtain employment.
(Tr. 305.)
Houck’s
Although the ALJ recited at step two of the SEP Dr.
opinion
that
Plaintiff’s
“recurrent
ear
infections
interfered with her use of hearing aids” (Tr. 33), the ALJ did not
11
address that opinion in weighing Dr. Houck’s opinions as part of
the RFC determination:
The undersigned gives little weight to Dr. Houck’s
assessment that [Plaintiff] has significant difficulty
discerning conversational speech when she wears hearing
aids. The opinion deserves little weight because it is
contradicted by Dr. Funderburk’s consultative report and
[Plaintiff’s] testimony.
(Tr. 37 (emphasis added).)
The ALJ should have expressly weighed Dr. Houck’s opinion that
Plaintiff’s recurrent ear infections interfere with her ability to
wear hearing
aids,
and
either
(A)
accepted that
opinion
and
discussed whether and/or what related, additional limitations, if
any, would apply to the RFC, or (B) rejected the opinion and
explained the basis for his rejection. See 20 C.F.R. § 404.1527(c)
(“Regardless of its source, [the ALJ] will evaluate every medical
opinion [he or she] receive[s]” and where an opinion does not
warrant controlling weight, [the ALJ must] consider all of the . .
. factors [in 20 C.F.R. § 404.1527(c)(1)-(6)] in deciding the
weight [to] give to any medical opinion.” (emphasis added)); Social
Security Ruling 96-5p, Medical Source Opinions on Issues Reserved
to the Commissioner, 1996 WL 374183, at *5 (July 2, 1996) (noting
that ALJs “must weigh medical source statements . . . [and]
provid[e] appropriate explanations for accepting or rejecting such
opinions”); Social Security Ruling 96-8p, Policy Interpretation
Ruling Titles II and XVI: Assessing Residual Functional Capacity in
Initial Claims, 1996 WL 374184, at *7 (July 2, 1996) (“The RFC
12
assessment
opinions.
must
always
consider
and
address
medical
source
If the RFC assessment conflicts with an opinion from a
medical source, the [ALJ] must explain why the opinion was not
adopted.”); see also Gordon v. Schweiker, 725 F.2d 231, 235 (4th
Cir.
1984)
(holding
that
reviewing
court
generally
“cannot
determine if findings are supported by substantial evidence unless
the [ALJ] explicitly indicates the weight given to all of the
relevant evidence”).
The ALJ’s failure to address the issue of
Plaintiff’s inability to wear hearing aids during ear infections as
part of the RFC analysis renders the RFC determination unsupported
by substantial evidence and/or precludes a finding that the RFC
determination arose from a correct application of the law.
The
ALJ’s
failure
to
address
in
the
RFC
determination
Plaintiff’s ability to hear when she cannot wear her hearing aids
during
ear
infections
also
undermines
the
ALJ’s
step
four
conclusion that Plaintiff can return to her past relevant work as
a certified medical technician (see Tr. 38), as well as his
alternative step five determination that other jobs exist in
significant numbers that Plaintiff could perform (see Tr. 38-39).
Plaintiff testified that her job as a certified medical technician
involved speaking with doctors on the telephone regarding patients’
medication orders, and that she lost her job because she misheard
a
doctor’s
orders.
(See
Tr.
48, 50,
60;
see
also
Tr.
192
(Plaintiff noting in Disability Report increasing difficulty of
13
speaking to doctors and families on telephone).)6
Additionally,
Plaintiff testified that she suffered from ear infections two to
three times per year (or more) that lasted for up to four or five
days each, during which time she could not wear her hearing aids.
(Tr. 60).
Audiological testing at Dr. Houck’s office in October
2012
Tr.
(see
306)
demonstrated
that
without
hearing
aids,
Plaintiff suffered from “profound sensorineural hearing loss” (Tr.
305).
Given this record evidence, the ALJ’s conclusions, reached
without the assistance of a VE, that Plaintiff could return to her
past relevant work as a certified medical technician (see Tr. 38),
or other, unidentified jobs existing in significant numbers in the
national economy (see Tr. 39) do not rest on a proper application
of the law and/or lack the support of substantial evidence.
In sum, Plaintiff’s first assignment of error has merit and
warrants remand.
Upon remand, the ALJ should call a VE to address
the impact of any non-exertional limitations, and particularly
hearing-related limitations (including Plaintiff’s inability to
wear hearing aids during ear infections), on Plaintiff’s ability to
return
to
her
past
relevant
work
and,
if
necessary,
the
occupational base of other available jobs.
6
This testimony and evidence belies Defendant’s declaration in brief that the
record lacks any “evidence that Plaintiff’s hearing loss which is a long term
condition ever interfered with her ability to work in the past.” (Docket Entry
13 at 7 n.2.)
In addition, hearing treatment records reflect that, as of
October 15, 2012, just one month after Plaintiff lost her job for mishearing a
doctor’s orders (see Tr. 192), Plaintiff's hearing had worsened by ten percent
since her last audiological test (see Tr. 305).
14
2. Explanation of Limitations from Hearing Loss in RFC
In Plaintiff’s second and final issue on review, she contends
that “[t]he ALJ erred by admitting bilateral sensorineural hearing
loss was a [severe impairment] but failing to explain how work
related limitations for this condition were included in the RFC.”
(Docket Entry 11 at 7 (bold font omitted).)
However, in light of
the recommendation to remand, and the likelihood that, upon remand,
the
ALJ
will
reassess
the
RFC,
no
need
exists
to
address
Plaintiff’s arguments directed at limitations from hearing loss in
the RFC.
III.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated, and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings consistent this Recommendation.
As a
result, Plaintiff’s Motion for Judgment on the Pleadings (Docket
Entry 10) should be granted in part (i.e., to the extent it
requests remand), and Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 12) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 30, 2016
15
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