CONNORS v. BERRYHILL
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE MARK A. KEARNEY ON 9/29/17. 9/29/17 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUANITA TERESA CONNORS
NANCY A. BERRYHILL
September 29, 2017
Juanita Teresa Connors petitions for our review of the Social Security Administration's
denial of disability benefits. After extensive review of the underlying record and the arguments
presented by Ms. Connors and the Commissioner, we dismiss Ms. Connors's Petition for review
in the accompanying Order as we find the Administrative Law Judge's decision is based upon
Fifty year-old Juanita Teresa Connors earned a high school education. 1 Ms. Connors's
medical history includes alleged low back pain, pain in both hips, and pain while walking. 2 Ms.
Connors began treating with Dr. Theophila C. Semanoff for trouble sleeping and for swelling
and pain in her right hip in 2012. 3 Ms. Connors suffers from degenerative disc and joint
Before October 23, 2013, she worked as an administrative assistant and worked in food
service waiting tables. 5 She has not worked since because her pain causes her too much
difficulty getting to work, sitting, and typing. 6
Ms. Connors filed for disability benefits alleging disability as of October 23, 2013. 7 The
Social Security Administration denied her application. 8
Following a hearing, Administrative
Law Judge ("ALJ") Paula Garrety denied Ms. Connors's claim in a October 23, 2015 decision. 9
ALT Garrety applied the required five-step analysis to find Ms. Connors "has not been under a
disability within the meaning of the Social Secuirty Act from October 23, 2013 through the date
of this decision." ALT Garrety found Ms. Connors restricted to only sedentary work, which is
consistent with the level of work of an administrative assistant based upon Ms. Connors's severe
physical impairments under 20 CFR 404.1529, SSRs 96-4p, and 96-7p. 10
determined the sedentary work must be limited to a clean and temperate environment with no
exposure to heights, scaffolds, ladders, hazards, or humid conditions. 11 ALT Garrety found Ms.
Connors able to perform her past relevant work, but with limitations. 12
Al.J Garrety afforded limited weight to the opinions of Ms. Connors's treating doctor Dr.
Theophila C. Semanoff, and determined the objective medical evidence did not support Ms.
Connors's claims she cannot sit, stand, or walk for more than seven hours in an eight-hour
workday. The ALT found Ms. Connors's residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a), and can perform her past relevant work as an administrative
Ms. Connors timely filed a petition for review. Ms. Connors argues ALT Garrety erred in
finding: 1) treating Doctor Semanoff s opinion is not entitled to great weight; 2) the opinion of
Ms. Connors's consultative physician, Dr. Digamber, as able to perform sedentary work is
entitled to great weight but her opinion relating to a seven hour work day limit is entitled to little
weight; and 3) Ms. Connors retained the ability to return to her past sedentary work. 14 We
overrule Ms. Connors's objections and affirm ALJ Garrety's findings based on substantial
Judicial review of AU Garrety's October 23, 2015 decision is deferential; we are bound
by her findings of fact if they are supported by substantial evidence in the record.
an ALJ's findings of fact "under the deferential 'substantial evidence' standard." 16 "We must
affirm the ALJ so long as his conclusions are supported by substantial evidence." 17 Substantial
evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." 18 Substantial evidence consists of "more than a mere scintilla but may be
somewhat less than a preponderance of the evidence." 19 To determine whether substantial
evidence supports the factual finding, we review the record as a whole. 20 Even if we would have
decided the matter differently, we are bound by the ALJ' s factual findings if they are supported
by substantial evidence through the appropriate legal standards. 21
An AU must determine whether the claimant is disabled when examining a challenge to
the Commissioner's initial decision denying benefits. Under Title II of the Social Security Act
("Act"), a person who has contributed to the program who suffers from a physical or mental
disability is afforded insurance benefits. 22 A disability is the "inability to engage m 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." 23 A claimant is only disabled if their
impairments are severe to the point it makes their previous work impossible to do or precludes
any other kind of gainful work available in the national economy. 24
A Commissioner applies a five-step sequential evaluation process to determine if a
claimant has a disability. 25 If the Commissioner finds disability or non-disability at any point
during the analysis, the Commissioner will not review the claim further.
Under step one, the
claimant must prove he or she is not working at a "substantial gainful activity."27 Under step
two, the claimant must prove she has a "severe impairment." 28
Under step three, the
Commissioner must determine whether the claimant's impairment matches, or is equivalent to,
one of the listed impairments to preclude gainful employment. 29 If the claimant's impairment
matches or equals a listing, he is presumed disabled. 30 If the impairment does not match or equal
a listing, then under step four, the claimant must show he does not have the residual functional
capacity ("RFC") to perform his previous work. 31 At step five, the Commissioner must address
whether "there are other jobs existing in significant numbers in the national economy which
claimant can perform, consistent with his medical impairments, age, education, past work
experience, and [RFC]. " 32
A. ALJ Garrety did not erroneously weigh Dr. Semanoff's opinion.
Ms. Connors argues AU Garrety erred by not according great weight to treating
physician Dr. Semanoffs opinions. 33 Ms. Connors argues Dr. Semanoffs opinions should be
given controlling weight and there is no contrary evidence in the record. Ms. Connors argues
ALJ Garrety improperly assigned only some weight because Ms. Connors's financial
circumstances limited her ability to obtain medical treatment, the ALJ' s opinion on the
diagnostic imaging is uninformed and contrary to the record, and Ms. Connors' s reason for using
a cane should not matter because it is still used for her impairment. We disagree.
An ALJ may accord great weight to a treating physician's opinion, "especially when their
opinions reflect expert judgment based on a continuing observation of the patient's condition
over a prolonged period of time." 34 A treating source's opinion is also entitled controlling
weight "when supported by medically acceptable clinical and laboratory diagnostic techniques
and is consistent with other substantial evidence in the record." 35 In rejecting a treating
physician's assessment, an ALJ may not make "speculative inferences from medical reports" and
may not reject a treating physician's opinion "due to his or her own credibility judgments,
speculation or lay opinion." 36 The AU must explain on the record his or her reasons for
disregarding a treating physician's opinion. 37 It cannot be for "no reason or for the wrong
An ALJ may decide not to credit a treating physician's opinion only upon providing an
adequate explanation. 39 Our court of appeals has repeatedly held when a treating physician's
notes, analyzed as a whole, contradict the physician's opinion on a claimant's ability to work, an
AU may properly rely on those notes in determining the opinion is entitled to little or no
weight." 40 An ALJ may reject a treating physician's opinion in favor of a non-examining
physician if the latter opinion is more consistent with the evidence. 41
Ultimately, determining a claimant's RFC is the province of the ALJ and not of the
An AU is required to conduct an independent analysis of the relevant
evidence and reach her own determination regarding the claimant's RFC. 42 "There is no legal
requirement that a physician have made the particular findings that an AU adopts in the course
of determining an RFC. Surveying the medical evidence is part of the ALJ's duties." 43
AU Garrety provided legitimate reasons for assigning limited weight to the opinions of
Dr. Semanoff. ALJ Garrety notes Ms. Connors's inconsistent visits as a reason for according
only some weight to the opinion. Dr. Semanoff only saw Ms. Connors three times in the past
five years and has not received any injections, including epidural injections, since January 9,
2012. 44 AU Garrety notes Ms. Connors did not see Dr. Semanoff at all between March 2012
and January 2013. 45 Ms. Connors was scheduled to return three months after her January 14,
2013 appointment, but did not return until January 20, 2014. 46 Ms. Connors returned for her last
visit with Dr. Semanoff on July 1, 2015. 47
On January 14, 2013, Dr. Semanoff opined Ms. Connors had "only 'fair' muscle strength
in the right lower extremity, but her range of motion of the upper and lower extremities was
'functional.'"48 On January 20, 2014, Dr. Semanoff ordered imaging which caused her to doubt
"very much that her problems were arising in her back", and found normal joint alignment,
unremarkable regional soft tissues, left hip had only mild osteoarthritis, only a suggestion of
impingement, stable grate 1 anterolistesis, and only mild multilevel lumbar discogenic
degenerative disease. 49 In her April 29, 2015 Progress Note, Dr. Semanoff detailed the MRI of
the lumbosacral spine in 2011 showed no acute abnormalities along with no evidence of
herniated discs. 50 The MRI of Ms. Connors's hips showed a labrum tear, X-rays showed a
possible impingements on the left hip but no other abnormalities. Dr. Semanoff made no other
ALT Garrety found the diagnostic imaging to have no significant results supporting Ms.
Connors's claims she could not sustain sedentary work. Dr. Thomas Vikoren also reviewed
October 24, 2012 images showing normal pelvic and right hip AP and internal radiographs, and
questioned whether Ms. Connors had a right hip labral tear. 52 On February 22, 2014, a left hip
CR showed "mild" osteoarthritis and a lumbosacral CR showed "mild" degenerative disc
ALT Garrety relied upon the conflicting results to determine the diagnostic imaging
record presented no significant findings.
ALJ Garrety found Ms. Connors "did not regularly see her primary care physician and
attended little chiropractic treatment." 54 Ms. Connors challenges this finding because she does
not have enough money to pay for the treatment and visits due to the size of her deductible
payment.ss Dr. Semanoff recommended Ms. Connors be evaluated by orthopedics, but seeing a
physician cost her $120 due to her high deductible.s 6 ALT Garrety explains Ms. Connors's
testimony of "smoking cigarettes daily" undermines Ms. Connors's and Dr. Semanoffs reason
for a lack of continual visits and therapy because she has money to afford cigarettes.s 7 While
we find this speculation must be disregarded, the fact remains Ms. Connors did not attend her
doctor visits. As such, we have no record of ongoing consistent treatment which could possibly
demonstrate a disability. Her reasons for not going to the doctor visits do not affect whether she
is disabled unless she can show her disability precluded her from visiting the doctor. Lack of
funds is not a disability under the Social Security Act.
ALJ Garrety found inconsistences between Dr. Semanoff s notes pertaining to Ms.
Connors's cane use and Dr. Charles L. Nelson's contradicted opinion regarding her instability.
Dr. Semanoff opined Ms. Connors needed to use a cane, but recommended it to aid in healing
her left hip and leg.s 8 ALT Garrety relied upon Dr. Nelson's treatment notes from Decembe_r 12,
2012 and February 18, 2013 stating Ms. Connors had no instability that required a cane.s 9 ALJ
Garrety relied on Dr. Nelson's opinion contradicting Dr. Semanoffs notes to determine Dr.
Semanoff s opinion is entitled to little or no weight as given permission under our Court of
Based on her detailed review of the medical evidence, ALJ Garrety afforded limited
weight to Dr. Semanoffs opinions. ALT Garrety explained her reasons for the limited weight
given to Dr. Semanoff's opinion including Ms. Connors's infrequent visits, medical evidence,
conflicting notes and contradictory opinions.
B. ALJ Garrety did not err in giving great weight to the part of Dr. Digamber's
opinion finding Ms. Connors could perform sedentary work but limited weight to
the opinion of a seven hour work day limit.
Ms. Connors objects to ALJ Garrety's interpretation of the State agency examination by
Dr. Pramod Digamber who found Ms. Connors able to perform sedentary work. Ms. Connors
argues ALJ Garrety erroneously interpreted Dr. Digamber' s opinion finding Ms. Connors able to
perform sedentary work because ALT Garrety provided no reason as to why she did not accept
Dr. Digamber's opinion Ms. Connors being able to work only seven hours a day.
Our court of appeals instructs the ALT makes the ultimate determination regarding a
party's disability and RFC determination, not the treating or examining physicians or State
agency consultants. 60 An ALJ "must explain the weight given to physician opinions and the
degree to which a claimant's testimony is credited."61 An ALT may accept some portions of a
medical source's opinion while rejecting other opinions from the same source. 62 An ALT only
needs to "articulate at some minimum level of analysis of a particular line of evidence" and not
write an evaluation of every piece of evidence. 63
"Although treating and examining physicians opinions often deserve more weight than
the opinions of doctors who review records ... the law is clear ... the opinion of a treating
physician does not bind the ALT on the issue of functional capacity."64 State agency opinions
and consultants merit great consideration because they are experts in the Social Security
disability programs. 65 State agency medical and psychological consultants, and other program
and medical specialists are experts in Social Security disability evaluation. 66
On January 31, 2014, Dr. Digamber conducted a Social Security physical consultative
examination, and reported Ms. Connors had a history of low back pain and pain in both hips. 67
Dr. Digamber reported Ms. Connors described her back pain as severe and constant, but noted
she only rated it a three or four on a scale of 10, and only eight to ten upon exacerbation. 68 Dr.
Digamber noted Ms. Connors walked with a slight limp with and without her cane, but the limp
was "exaggerated."69 Ms. Connors did not need help changing for the exam or getting on and off
the exam table, and was able to rise from the chair without difficulty. 70 Dr. Digamber found Ms.
Connors to have a positive straight leg raise, no joint deformity or effusion, and all hand and
finger dexterity intact with grip strength five out of five bilaterally. 71 Dr. Digamber conducted a
lumbosacral spine x-ray and found the x-ray to be normal. 72 AU Garrety also notes Dr.
Digamber found Ms. Connors showed no evidence of impaired judgment or significant memory
impairment, and despite claiming in her testimony being in a fog due to her medication. 73
ALG Garrety accorded great weight to those portions of Dr. Digamber's opinion of Ms.
Connors being able to perform sedentary work because Dr. Digamber is an acceptable medical
source, personally examined Ms. Connors, and knowledgeable of Social Security regulations and
requirements. 74 ALJ Garrety found Dr. Digamber' s opinion well supported by "other substantial
medically acceptable clinical and laboratory diagnostic evidence" finding the diagnostic imaging
had no significant findings, along with a record of minimal, inconsistent, and conservative
treatment. 75 AU Garrety found Dr. Digamber's opinion consistent with the Doctor's own
examination and objective findings of Ms. Connors because Ms. Connors had a normal stance
and full strength in all extremities, reported cooking several times a week, showering, and
dressing herself. 76
ALJ Garrety's decision to give little weight to Dr. Digamber's finding of Ms. Connors
being able to work only seven hours is supported through substantial evidence. The AU does
not need to provide a written evaluation about disregarding Dr. Digamber' s indication of
working only seven total hours because the ALT only needs to articulate an analysis based on the
evidence. 77 ALJ Garrety articulated why she chose not to give weight to Dr. Digamber's total
amount of hours able to work assessment by reconciling Dr. Digamber's and Dr. Arnold's
opinions. 78 The AU evaulated the physical assessment conducted by State agency medical
consultant, Dr. Gordon C. Arnold, to find Ms. Connors has the ability to perform a total of 8
hours of work. 79 ALT Garrety explained Dr. Digamber's opinion is generally consistent with the
opinion of Dr. Arnold, except for Dr. Digamber opining Ms. Connors only being able to work
seven hours and Dr. Arnold's opinion she is able to work eight hours. 80 AU Garrety found Ms.
Connors could perform sedentary work, and did not give great weight to Dr. Digamber's opinion
on Ms. Connors ability to only work seven hours because of the diagnostic images' positive
findings, inconsistent treatment and complaints of pain, evidence of conservative treatment, and
Ms. Connors' s testimony about her ability to function. 81
Based on ALJ Garrety's detailed review of both of the State's medical examiners'
opinions, diagnostic imaging, inconsistent complaints of pain, conservative treatment, and Ms.
Connors's testimony, the ALJ found Dr. Digamber's seven hours of work ability assessment
unsupported by the record and afforded it little weight.
We find ALT Garrety articulated the analysis for disregarding part of Dr. Digamber's
opinion and supported her decision with substantial evidence.
C. ALJ Garrety did not err in finding Ms. Connors retained the ability to return to
past relevant work.
Ms. Connors objects to ALT Garrety finding Ms. Connors retained the ability to return to
her past work as an administrative assistant. Ms. Connors claims the ALT failed to properly
consider the demands of Ms. Connors's past relevant work, and failed to properly assess her
residual functional capacity based off the vocational expert's testimony.
Our court of appeals does not require the ALT to submit the vocational expert to every
impairment alleged by the claimant. 82 An AU may discount giving limitations and impairments
to the vocational expert if reasonably not established by the record. 83 ALT Garrety's decision to
discount evidence when questioning the vocational expert is proper because the evidence of her
inability to sit, stand, and walk for more than seven hours in an eight hour work day is not
sufficiently established by the record. 84 The ALT found the record does not support Ms.
Connors's claim of being unable to perform sedentary work. ALJ Garrety addressed her reasons
for providing little weight to Dr. Semanoffs and Dr. Digamber's opinion regarding the total
amount of hours Ms. Connors could sit, stand, and walk during an eight-hour workday and cited
evidence contradicting Ms. Connors' s alleged physical limitations. 85
ALT Garrety also
addressed the record does not indicate Ms. Connors has any severe mental impairment, and the
use of a cane does not erode the sedentary occupational base. 86 AU Garrety withheld evidence
of limitations to the vocational expert because she did not reasonably find it established on the
ALT Garrety did not err in finding Ms. Connors's able to perform sedentary work and
return to her past relevant work as an administrative assistant.
In the accompanying order, we affirm AU Garrety's October 23, 2015 decision denying
Ms. Connors's application for disability insurance benefits. Our review is not based on whether
we would arrive at the same conclusion after our examination and balancing of the evidence.
We only decide whether AU Garrety's findings are based on substantial evidence derived from
the record after considering the weight afforded to the adduced evidence. We find ALT Garrety
did not err in (1) affording limited weight to Dr. Semanoff s opinion, (2) affording great weight
to part of Dr. Digamber's opinion Ms. Connors's could perform sedentary work and limited
weight to her opinion as to a seven hour work day, and (3) finding Ms. Connors capable of
performing sedentary work and working as an administrative assistant.
ECF Doc. No. 8, Record of Proceedings ("R.") 7.
R. 37-38, 40.
R. 18, 24.
R. 18, 24.
ECF Doc. No. 10, at 4-15.
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing Plummer v. Apfel, 186 F.3d 422, 427
(3d Cir. 1999)).
Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (quoting 42 U.S.C. § 405(g)).
Id. (citing Craigie v. Bowen, 835 F.2d 56, 57 (3d Cir. 1987)).
Id. (quoting Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)).
Id. (quoting Rutherford, 399 F.3d at 552) (internal quotations omitted).
Id. (citing Schaudeck v. Comm 'r, 181F.3d429, 431 (3d Cir.1999)).
Trinh v. Astrue, 900 F. Supp. 2d 515, 518 (E.D. Pa. 2012)(citing Fargnoli v. Massanari, 247
F.3d 34, 38 (3d Cir. 2001)).
42 U.S.C. § 423(a)(l)(D)(2015).
42 U.S.C. § 423(d)(l)(A).
Id. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004).
C.F.R. §§ 404.1502(a)(4), 414.920(a)(4)(i).
See id. (mandating finding of non-disability if claimant is engaged in substantial gainful
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii)(mandating finding of non-disability if
claimant's impairments are not severe).
See id. at§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
See Id. at§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Plummer, 186 F.3d at 428.
Ec F Doc. No. 10, at 6.
Matuskowitz v. Barnhart, 348 F. Supp. 2d 371, 374 (E.D. Pa. 2004) (citing Plummer 186 F.3d
Miller v. Berryhill, No. 16-00521, 2017 WL 3648494, at *3 (E.D. Pa. Aug. 22, 2017) (citing
20 C.F.R. § 416.927(c)(2)).
Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (internal quotation marks omitted).
Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986).
Morales, 225 F.3d at 317 (internal quotations marks omitted).
Sherrod v. Barnhart, No. 01-4731, 2002 WL 31429337, at *3 (E.D. Pa. Oct. 29, 2002).
Smith v. Astrue, 961 F. Supp. 2d 620, 643 (D. Del. 2013) (citing Dula v. Barnhart, 129 F.
App'x 715, 719 (3d Cir. 2005)); accord Humphreys v. Barnhart, 127 Fed. App'x 73, 76 (3d Cir.
2005); Shelton v. Astrue, No. 11-751, 2012 WL 3715561, at *3 (W.D. Pa. Aug. 28, 2012);
Petrowsky v. Astrue, No. 10-563, 2011WL6083117, at *14-15 (D. Del. Dec. 6, 2011).
Salerno v. Comm 'r of Soc. Sec., 152 Fed. App'x 208, 209 (3d Cir. 2005); Hudson v. Comm 'r
of Soc. Sec., 93 Fed. App'x 428, 431 (3d Cir. 2004). See also Brown v. Astrue, 649 F.3d 193,
196 (3d Cir. 2011) (citing Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)).
Chandler v. Comm 'r Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). The ALJ-not treating or
examining physicians or State agency consultants-must make the ultimate disability and RFC
determinations. See 20 C.F.R. §§ 404.1527(e)(l), 404.1546(c). Although treating and examining
physician opinions often deserve more weight than the opinions of doctors who review records,
see, e.g., 20 C.F.R. § 404.1527(d)(l)-(2), '[t]he law is clear ... that the opinion of a treating
physician does not bind the ALJ on the issue of functional capacity .... "' Id. (quoting Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)).
Titterington v. Barnhart, 174 Fed. App'x 6, 11 (3d Cir. 2006); see also Chandler, 667 F.3d at
362 (ALJ could extrapolate based on evidence in record because every fact incorporated in an
RFC does not need to have been found by a medical expert).
R. at 23, 197.
R. at 20, 199-200.
R. at 20, 409.
R. at 23, 407.
R. at 20.
R. at 21, 387-340.
R. at 23, 408.
R. at 23, 408.
R. at 23, 227.
R. at 23, 389. The parties do not define the acronyms AP and CR.
R. at 23, 380.
R. at 380.
R. at 408.
R. at 23, 380.
R. at 23, 199.
R. at 23, 207.
°Chandler v. Comm'r of Soc. Sec., 667 F.3d at 361(citing20 C.F.R. § 404.1527(d)(l)-(2)).
Chandler, 667 F.3d at 362 (citing 20 C.F.R. § 404.1527 (f)(2)(ii)).
Comiskey v. Astrue, 2010 WL 308979, at *9 (E.D. Pa. Jan. 27, 2010) (citing Johnson v.
Comm 'r Soc. Sec., 529 F.3d 198, 202-04 (3d Cir. 2008)).
Phillips v. Barnhart, 91 Fed. App'x 755, 780 n.7 (3d Cir. 2004).
Chandler, 667 F.3d at 362 (citing Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)).
Id. at 361.
20 C.F.R. § 404.1527(e)(2)(i).
R. at 21, 228.
R. at 21, 228.
R. at 21, 228.
R. at 22-23, 230.
R. at 22-23, 231, 332.
R. at 22, 229.
R. at 22, 332.
R. 23, 237-244.
R. 23, 196-200, 201-209, 210-227, 232, 244-410.
R. 23, 228-236.
Phillips, 91 Fed .App'x at 780 n.7.
R. 23, 58-69.
See id. at 554.
Rutherford, 399 F.3d at 554 (explaining hypotheticals given to the vocational expert should be
credibly established by the record).
R. at 24.
R. at 23-24.
SSR 96-9p (stating the sedentary occupational base is eroded when "the individual also has a
nonexertional limitation(s) that narrows the potential range of sedentary work to which he or she
might be able to adjust.")
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