Kissell v. Berryhill
Filing
15
MEMORANDUM (Order to follow as separate docket entry)(PLEASE SEE MEMORANDUM FOR COMPLETE DETAILS). Signed by Honorable Richard P. Conaboy on 9/4/18. (lh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Shannon Kissell,
Plaintiff,
No. 3:17-CV-02203
v.
(Judge Richard P. Conaboy)
Nancy A. Berryhill, Deputy
Commissioner for Operations,
performing the duties and
functions not reserved to the
Commissioner of Social Security,
Defendant.
MEMORANDUM
I.
Procedural Background.
We consider here Plaintiff Shannon Kissell’s appeal from an
adverse decision of the Social Security Administration (“SSA” or
“Agency”) on her application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).
1
This case is
before the Court after the Appeals Council vacated an ALJ
decision dated May 30, 2014 and remanded the matter to the ALJ
for further consideration of the Plaintiff’s residual function
capacity and clarification of the method used to evaluate the
1
The current appeal relates to applications filed on November 19, 2012 that alleged a
disability onset date of February 25, 2010. Previous decisions of the SSA on prior applications by
Plaintiff had resulted in a final decision that denied benefits effective May 10, 2010. (R. at 10). The
ALJ found that the prior decision had res judicata effect and Plaintiff does not challenge that finding.
Thus, this claim can succeed only if Plaintiff demonstrates disability in the period from May 11,
2012 through December 31, 2013 (Plaintiff’s last insured date). (R. at 13).
medical evidence. (R. 247-48). On remand the ALJ conducted two
additional hearings and issued another opinion (R. 7-31) dated
October 4, 2016 that once again denied benefits. The Appeals
Council subsequently affirmed the ALJ’s decision of October 4,
2016 and Plaintiff appeals. Because the Appeals Council’s
decision dated October 4, 2017 constitutes a final decision by
the SSA, this Court has jurisdiction over this matter pursuant
to 42 U.S.C. § 405g.
II.
Testimony before the ALJ.
A.
Hearing of April 21, 2016.
The hearing was conducted by ALJ Michelle Wolfe. The
Plaintiff testified along with Sean Hanahue, a Vocational Expert
(“VE”). Plaintiff’s attorney Charles Rosamilia, Jr. was also
present.
Plaintiff stated that she resides in Renovo, Pennsylvania
and that she was born on September 13, 1979. She testified that
she became disabled on February 25, 2010. She is a high school
graduate who is a certified emergency medical technician. (R.
102-03).
The VE testified that he had examined Plaintiff’s work
history over the preceding fifteen years. That work consisted of
employment as a nurse’s aide/caregiver from 1999 to some
unspecified date in 2008. The VE characterized this work as
“medium exertional level, semi-skilled” but noted that
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Plaintiff’s particular work environment was at “very heavy
exertional level”. (R. at 103-04).
The ALJ proffered a hypothetical question in which the VE
was asked to assume an individual the same age as Plaintiff with
the same educational background and work history. He was asked
to further assume that the hypothetical individual had the
residual functional capacity to perform light work with
additional limitations including: only occasional balancing,
stooping, crawling, crouching, kneeling, and climbing; avoidance
of ropes, ladders, and scaffolds; only occasional pushing and
pulling with the lower extremities; avoidance of exposure to
temperature extremes, wetness and humidity, vibrations, fumes,
odors, dust, gases, and poor ventilation; no exposure to
unprotected heights or moving machinery; and only simple routine
tasks performed in a low stress environment with only occasional
decision making and occasional changes in the work setting.
Based on these assumptions, the VE testified the hypothetical
individual would be incapable of performing Plaintiff’s past
relevant work. (R. 104-06). However, the VE did state that the
hypothetical individual could perform other jobs (such as “night
cleaner housekeeping”, “garment sorter”, and “cashier”) that
exist in significant numbers in the national economy. (R. at
105-06). When additional limitations of only occasional pushing
with the right arm and only occasional interaction with the
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public were added to the hypothetical question, the VE stated
that the cashier position would be eliminated but the
cleaner/housekeeper and garment sorter jobs could still be
performed. (R. at 107).
Upon questioning by Plaintiff’s attorney, the VE stated
that an additional limitation such that Plaintiff would be
incapable of performing 80% of the duties of the jobs previously
identified by the VE would render the Plaintiff unemployable at
any exertional level. (R. 110-111).
B.
Hearing of August 15, 2016.
The hearing of August 15, 2016 was conducted to permit
Plaintiff to testify regarding her then current status in
respect of her alternative claim for SSI benefits. Plaintiff
testified that she had been diagnosed with depression and
bipolar disorder and that the latter had produced an anger
management problem. She stated further that she takes Lithium,
Ativan, and Vistaril to control her anger. These medications
make her tired. She also experiences panic attacks when she is
around other people. These attacks result in an accelerated
heart rate and the inability to think straight. She is not
receiving treatment for her emotional problems other than the
medications she identified. (R. 118-119).
Plaintiff does go to the Haven Medical Group once each
month for pain management. She stated that she is taking fifteen
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different medications in connection with her treatment by the
Haven Medical Group for her pain and for breathing difficulty.
These medications also make her tired. Her right hand is in a
brace and she indicated that no further treatment is available
for that hand. (R. 119-120).
Plaintiff also stated that since 2014 her home activities
have decreased. She no longer washes dishes, does laundry, or
goes upstairs due to pain in her knee, back, and wrist. She
barely uses a computer but has no problem reading or watching
television. She is not exercising or doing any form of therapy.
She can walk one-half of a block before pain in her lower back
and knee make it necessary to stop and take a break. She has no
difficulty sitting. (R. at 120-122).
Plaintiff also testified that her wrist problems are in her
right wrist and that she is right hand dominant. She stated that
she cannot move or lift her right hand due to pain that she
rates as level 8 on a 10 point scale. This pain has caused her
to drop such objects as plates and bowls. (R. 122-123).
Plaintiff also indicated that she has been diagnosed with Von
Willebrand’s Disorder, a condition which impedes her blood from
clotting and makes her prone to infections. Even a paper cut can
take weeks to heal. (R. at 124).
Upon questioning by Gerald Keating, a VE, Plaintiff
testified that one of her previous jobs was as a caregiver at
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the Colburn Psychiatric Institute. Her job there involved
working with juveniles who were autistic or beset by other
behavior problems. Plaintiff’s duties included “de-escalating”
students who had violent episodes. She was trained in the
application of therapeutic physical restraints. She also cooked
in the establishment and at times trained students to cook. (R.
126-128). Once the VE had heard Plaintiff’s testimony regarding
her prior work at Colburn Psychiatric Institute, he opined, as
had VE Hanahue at the previous hearing, that, based upon the
previously described hypothetical question from the hearing of
April 21, 2016, Plaintiff could not perform any of her past
relevant work. However, VE Keating stated that Plaintiff would
be capable of performing such jobs as “assembler of small
products”, “pricer”, and “stock checker”. (R. at 125-132).
When the ALJ added an additional hypothetical limitation
such that Plaintiff would be incapable of more than occasional
fine and gross manipulation with the right hand, the VE stated
that none of the jobs he had identified would be within
Plaintiff’s capacity. (R, 133-135).
III. The ALJ’s Decision.
The ALJ’s decision was adverse to the claimant. It included
the following findings of fact and conclusions of law:
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1. The claimant meets the insured status
requirements of the Social Security Act through
December 31, 2013.
2. The claimant has not engaged in substantial
gainful activity since February 25, 2010, the
alleged onset date.
3. The claimant has the following severe
impairments: bipolar disorder, post-traumatic
stress disorder, panic disorder, degenerative
disc disease lumbar, degenerative disease of the
knees, obesity, asthma, wrist sprain/hand sprain,
and history of treatment for right DeQuervain
Syndrome.
4. The claimant does not have an impairment or
combination of imparments that meets or medically
equals the severity of one of the listed
impairments in the code of federal regulations.
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light
work as defined in 20 C.F.R. 404.1567(b) and
416.967(b). The claimant can do occasional
balancing, stooping, crouching, crawling,
kneeling and climbing but never on ladders,
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ropes, or scaffolds. The claimant can do
occasional pushing and pulling with the lower
extremities. She can occasionally push and pull
with the right upper extremity. She can do
frequent fingering and feeling for five minute
duration and frequent grasping for gross
manipulation. She must avoid concentrated
exposure to temperature extremes of cold/heat,
wetness, humidity, vibrations, fumes, odors,
dusts, gases, poor ventilation and hazards
including moving machinery and unprotected
heights. The claimant can do simple routine
tasks, but no complex tasks in a low stress work
environment defined as occasional decision-making
and occasional changes in work setting. She can
have occasional interaction with the public, coworkers and supervisors.
6. The claimant is unable to perform any past
relevant work.
7. The claimant was born on September 13, 1979 and
was thirty years old, which is defined as a
younger individual age 18-49, on the alleged
disability onset date.
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8. The claimant has at least a high school education
and is able to communicate in English.
9. Transferability of job skills is not material to
the determination of disability because using the
Medical-Vocational Rules as a framework supports
a finding that the claimant is “not disabled”,
whether or not the claimant has transferable job
skills.
10. Considering the claimant’s age, education, work
experience, and residual functional capacity,
there are jobs that exist in significant numbers
in the national economy that the claimant can
perform.
11. The claimant has not been under a disability, as
defined in the Social Security Act, from February
25, 2010 through the date of this decision.
IV.
Disability Determination Process.
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2
It is necessary for
2
ADisability@ is defined as the Ainability 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 . . . .@ 42 U.S.C. ' 423(d)(1)(A). The Act further provides that an individual is disabled
(footnote continued on next page)
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the Commissioner to ascertain: 1) whether the applicant is
engaged in a substantial activity; 2) whether the applicant is
severely impaired; 3) whether the impairment matches or is equal
to the requirements of one of the listed impairments, whereby he
qualifies for benefits without further inquiry; 4) whether the
claimant can perform his past work; 5) whether the claimant=s
impairment together with his age, education, and past work
experiences preclude him from doing any other sort of work.
20
CFR '' 404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley,
493 U.S. 521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.
The initial burden rests with the claimant to
demonstrate that he or she is unable to engage in his or her
past relevant work.
If the claimant satisfies this burden, then
the Commissioner must show that jobs exist in the national
economy that a person with the claimant=s abilities, age,
only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
42 U.S.C. ' 423(d)(2)(A).
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education, and work experience can perform.
Mason v. Shalala,
993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(Doc. 12-2 at 25).
V.
Standard of Review.
This Court’s review of the Commissioner=s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner=s decision.
42 U.S.C. ' 405(g);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Substantial evidence means Amore than a mere scintilla”.
It
means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.@
Richardson v. Perales, 402
U.S. 389, 401 (1971); see also Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981).
The Third Circuit Court of Appeals further
explained this standard in Kent v. Schweiker, 710 F.2d 110 (3d
Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence
vel non of substantial evidence is not
merely a quantitative exercise. A single
piece of evidence will not satisfy the
substantiality test if the Secretary
ignores, or fails to resolve, a conflict
created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed
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by other evidenceB-particularly certain
types of evidence (e.g., that offered by
treating physicians)B-or if it really
constitutes not evidence but mere
conclusion. See Cotter, 642 F.2d at 706
(ASubstantial evidence@ can only be
considered as supporting evidence in
relationship to all the other evidence in
the record.@) (footnote omitted). The
search for substantial evidence is thus a
qualitative exercise without which our
review of social security disability cases
ceases to be merely deferential and becomes
instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary
to analyze all evidence.
If she has not done so and has not
sufficiently explained the weight given to all probative
exhibits, Ato say that [the] decision is supported by
substantial evidence approaches an abdication of the court=s
duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.@
606 F.2d 403, 406 (3d Cir. 1979).
Dobrowolsky v. Califano,
In Cotter, the Circuit Court
clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected: ASince it is apparent that the ALJ cannot
reject evidence for no reason or the wrong reason, an
explanation from the ALJ of the reason why probative evidence
has been rejected is required so that a reviewing court can
determine whether the reasons for rejection were improper.@
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Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake
an exhaustive discussion of all the evidence.
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
See, e.g., Knepp
AThere is no
requirement that the ALJ discuss in her opinion every tidbit of
evidence included in the record.@
130, 133 (3d Cir. 2004).
Hur v. Barnhart, 94 F. App=x
A[W]here [a reviewing court] can
determine that there is substantial evidence supporting the
Commissioner=s decision, . . .
implicated.@
the Cotter doctrine is not
Hernandez v. Commissioner of Social Security, 89
Fed. Appx. 771, 774 (3d Cir. 2004) (not precedential).
A reviewing court may not set aside the Commissioner=s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
Hartranft, 181 F.3d at 360 (citing Monsour Medical Center v.
Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986); 42 U.S.C. '
405(g) (A[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive . . .@). AHowever, even if the Secretary=s factual
findings are supported by substantial evidence, [a court] may
review whether the Secretary, in making his findings, applied
the correct legal standards to the facts presented.@
Friedberg
v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (internal
quotation omitted).
Where the ALJ=s decision is explained in
sufficient detail to allow meaningful judicial review and the
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decision is supported by substantial evidence, a claimed error
may be deemed harmless.
See, e.g., Albury v. Commissioner of
Social Security, 116 F. App=x 328, 330 (3d Cir. 2004) (not
precedential) (citing Burnett v. Commissioner, 220 F.3d 112 (3d
Cir. 2000) (A[O]ur primary concern has always been the ability to
conduct meaningful judicial review.@). Finally, an ALJ=s decision
can only be reviewed by a court based on the evidence that was
before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VI.
Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue
here, we note the Third Circuit has repeatedly emphasized the
special nature of proceedings for disability benefits.
Dobrowolsky, 606 F.2d at 406.
See
Social Security proceedings are
not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove
his claim.
Id.
AThese proceedings are extremely important to
the claimants, who are in real need in most instances and who
claim not charity but that which is rightfully due as provided
for in Chapter 7, Subchapter II, of the Social Security Act.@
Hess v. Secretary of Health, Education and Welfare, 497 F. 2d
837, 840 (3d Cir. 1974).
As such, the agency must take extra
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care in developing an administrative record and in explicitly
weighing all evidence.
Dobrowolsky, 606 F.2d at 406.
Further,
the court in Dobrowolsky noted Athe cases demonstrate that,
consistent with the legislative purpose, courts have mandated
that leniency be shown in establishing the claimant=s disability,
and that the Secretary=s responsibility to rebut it be strictly
construed.@
Id.
B. Plaintiff’s Allegations of Error.
Plaintiff makes two assignments of error which she alleges
require remand in this case or an award of benefits. We shall
consider these assignments of error in the order presented by
Plaintiff in her brief.
1. Whether the ALJ’s decision of October 4, 2016 complied
with the remand instructions of the Appeals Council?
At the outset, it is apparent the Appeals Council agreed
that the ALJ had adequately complied with its remand order else
it would not have issued its October 4, 2017 denial of
Plaintiff’s request for review of the ALJ’s decision. (R. at 26). Indeed, the Appeals Council’s Notice of Action expressly
states that it considered Plaintiff’s rationale for remand and
concluded “that the reasons do not provide a basis for changing
the Administrative Law Judge’s decision.” (R. at 2). Moreover,
and more importantly, the question whether the ALJ fully
complied with the remand order is irrelevant here.
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As the Government points out in its brief, Section 405(g)
of the Social Security Act limits judicial review to a
particular type of agency action, a “final decision of the
Secretary made after a hearing.” Califano v. Sanders, 430 U.S.
99,108 (1977)(cited in the Government’s brief at 6). Numerous
courts in our circuit have relied upon this principle to hold
that district courts lack the authority to consider whether an
ALJ complied with a remand order of the Appeals Council. See,
e.g., Ford v. Colvin, 2015 WL 4608136 (D.Del. July 31, 2015);
Pearson v. Colvin, 2015 WL 9581749 (D.N.J. December 30, 2015);
Scott v. Astrue, 2007 WL 1725252 (E.D.Pa. June 12, 2007). “The
appropriate focus for review is upon the ALJ’s final decision,
not the prior Appeals Council remand order.” Pearson, supra at
*4.
Plaintiff cites no legal authority to contradict the
preceding authorities in her brief. Accordingly, we must reject
Plaintiff’s assignment of error regarding the ALJ’s alleged
failure to comply with the Appeals Council’s remand order of
December 21, 2015.
2.
Whether the ALJ’s determination that Plaintiff’s Von
Willebrand’s Disorder is not a severe impairment is unsupported
by substantial evidence?
Plaintiff’s attorney engaged in a dialogue with the VE at
Plaintiff’s second hearing (that of August 15, 2016) concerning
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Plaintiff’s diagnosis of Von Willebrand’s Disorder. (R. at 135137).3 During the exchange with the VE, Plaintiff’s counsel was
told that the Dictionary of Occupational Titles afforded no
guidance on the ability of a person with Von Willebrand’s
Disorder to perform in the workplace. The VE also stated that if
he was presented with a hypothetical question that expressed
limitations in “operational terms” he could possibly express an
opinion as to the availability of work for a person with Von
Willebrand’s Disorder. The Plaintiff’s counsel (and not the ALJ)
proposed a limitation such that the Plaintiff could not be in
any work environment where she might sustain so much as a paper
cut. Based upon that limitation, the VE stated that no such work
environment exists and work would be unavailable to such a
person.
The VE’s response to the hypothetical limitation proposed by
Plaintiff’s counsel was neither based on anything that the ALJ had
put forth nor was it represented by anything that appears in the
record. Nevertheless, Plaintiff appears to argue that the VE’s
response, in combination with other unspecified portions of the
record that document a supposed worsening of Plaintiff’s condition
3
Von Willebrand’s Disorder is a “lifelong bleeding disorder in which your blood does not
clot well. … Most people with this condition inherit it from a parent. …Von Willebrand’s Disorder
cannot be cured. But with good treatment and self-care, most people with this disease can lead active
lives.” www.mayoclinic.org/diseases/vonwillebrand-disease.
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over
the
years,
should
have
resulted
in
a
finding
that
the
Plaintiff’s Von Willebrand’s Disorder is a “severe impairment”
which should, in turn, have required the ALJ to further restrict
Plaintiff’s residual functional capacity. The Court does not agree.
The ALJ provided this rationale:
In regard to the claimant’s Von Willebrand’s
Disorder, the representative questioned the
vocational expert in what appeared to elicit a
response that due to this condition she would
never be able to even work in a job where she
could get a paper cut. The claimant, however, has
had this impairment since birth and worked at the
substantial gainful activity level at a medium
job with this condition. Therefore, the
undersigned does not find this disorder would be
severe, and even if so, the limitation on hazards
given for the other severe impairments would be a
reasonable accommodation for this impairment.
(Record at 13). The Court finds that the ALJ’s reasoning for
declining to find Plaintiff’s Von Willebrand’s Disorder to be a
“severe impairment” is reasonable and supported by substantial
evidence. Importantly, the record reflects that Plaintiff worked
as a nurse’s aide/caregiver between 1999 and 2008. (R. at 125129). This job, which required that she assist in transferring
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patients and occasionally helping to restrain violent patients
certainly posed a far greater danger of being cut than the light
duty jobs with numerous additional limitations which the ALJ
found Plaintiff can perform. This fact, coupled with the
Plaintiff’s failure to point to anything specific in the record
documenting a deterioration in Plaintiff’s Von Willebrand’s
Disorder, is enough to provide reasonable support for the ALJ’s
RFC determination in this case.
The fact that a claimant has been diagnosed with a
condition does not establish an entitlement to benefits. As the
Government asserts: “Mere presence of a disease or impairment is
not enough. The claimant must also show that his disease or
impairment caused dysfunctional limitations that precluded him
from engaging in any substantial activity.” Walker v. Barnhart,
172 F. App’x 423, 426 (3d Cir. 2006)(citing Alexander v.
Shalala, 927 F. Supp. 785, 792 (D.N.J. 1995); affirmed 85 F.3d
611 (3d Cir. 1996). The Plaintiff has pointed to nothing in the
record that establishes any specific functional limitations
stemming from her Von Willebrand’s Disorder. Accordingly,
plaintiff’s argument that a remand is necessary to revisit the
ALJ’s RFC determination in this case must be rejected.
VII. Conclusion.
For the reasons discussed above, the Court finds that the
Agency’s final decision is supported by the requisite
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substantial evidence. Thus, the SSA’s decision in this case will
be affirmed. An Order consistent with this determination will be
filed contemporaneously.
BY THE COURT,
S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge
Dated: September 4, 2018
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