GILSON v. COLVIN
Filing
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MEMORANDUM OPINION AND ORDER denying 8 Motion for Summary Judgment; granting 10 Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 4/22/15. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 1:14-cv-00232-TFM
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PATRICK F. GILSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
April 22, 2015
I.
Introduction
Patrick F. Gilson (“Plaintiff” or “Gilson”) brought this action for judicial review of the
decision of the Commissioner of Social Security (“Commissioner”), which denied his application
for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42
U.S.C. §§ 401-403. The parties have filed cross-motions for summary judgment. (ECF Nos. 8,
10), which have been fully briefed (ECF Nos. 9, 11) and are ripe for disposition. For the
following reasons, Plaintiff’s motion will be DENIED, and the Commissioner’s motion will be
GRANTED.
II.
Background
Plaintiff was born on October 7, 1961.1 (R. 46). He is a high school graduate. He has past
relevant work experience at the medium exertional level as a Returns Clerk, Inventory Clerk and
1.
As of his alleged onset date, Plaintiff was 48 years old, making him a “younger person”
under the regulations. 20 C.F.R. § 404.1563(c) (“If you are a younger person (under age 50), we
generally do not consider that your age will seriously affect your ability to adjust to other
work.”). However, as of Plaintiff’s 50th birthday he is considered a “person closely approaching
1
Packing Line Worker. Gilson engaged in only sporadic work after the alleged disability onset
date of March 31, 2010. He worked for one week in May 2011 at a temporary agency and for
two weeks in July 2011 stocking shelves at a Dollar General store. Administrative Law Judge
Kenneth G. Levin (“ALJ”) concluded that such work did not constitute substantial gainful
activity.
A.
Procedural History
Plaintiff filed an application for DIB on February 24, 2012, alleging disability as of
March 31, 2010, due to heart disease and psychiatric problems. After Plaintiff’s claims were
denied at the administrative level, he requested a hearing, which was held by video conference
on March 5, 2013. Plaintiff was represented by counsel and testified at the hearing, as did two
impartial medical experts and an impartial vocational expert (“VE”).
On March 20, 2013, the ALJ rendered an unfavorable decision to Plaintiff, finding that he
was not disabled through the date of the decision. (R. 61-73). Gilson has acquired sufficient
quarters of coverage to remain insured through June 30, 2015. The ALJ’s decision became the
final decision of the Commissioner when the Appeals Council denied Plaintiff’s request to
review the decision of the ALJ. On August 29, 2014, Plaintiff filed his Complaint in this Court,
in which he seeks judicial review of the decision of the ALJ. 2 The parties’ cross-motions for
summary judgment then followed.
advanced age.” Id. § 404.1563(d). Whenever a person is “closely approaching advanced age,”
the Commissioner “will consider that his age along with a severe impairment(s) and limited work
experience may seriously affect his ability to adjust to other work.” Id.
2
After the hearing with the ALJ, Plaintiff submitted additional medical evidence to the Appeals
Council. Plaintiff recognizes that this Court’s “Sentence Four” review is limited to the record as
considered by the ALJ. Plaintiff’s request for a “Sentence Six” remand will be addressed infra.
2
B.
Medical Evidence
Gilson has a medical history which pre-dates the onset of his disability including benign
prostatic hyperplasia (BPH), chronic obstructive pulmonary disease (COPD), hyperlipidemia,
hypertension, obesity and heavy smoking of cigarettes. He has a congenital heart block for
which a pacemaker was installed in 2007. Gilson continued to work afterwards but was unable
to maintain the required pace. On March 16, 2010 Gilson lost his job as a Returns Clerk and he
has been unable to secure employment since that time.
The ALJ found that Gilson has the following severe impairments: a history of congestive
heart failure and cardiomyopathy, COPD, obesity and adjustment disorder. The ALJ found that
Gilson also suffers from high cholesterol, hypertension, obstructive sleep apnea, tinnitus, hearing
loss, hand tremor, BPH and erectile dysfunction, and explained why none of these conditions
rose to a severe impairment. R. 64.
Gilson first sought treatment for depression at Beacon Light Behavioral Health Systems
in February 2012. Dr. Omar Eslao noted depression and anxiety that was increasing in the
context of Gilson not finding a job and also noted a low sex drive. Dr. Eslao also noted a history
of depressive episodes that had lasted less than two weeks such that they were not deemed
“major depressive episodes.” Dr. Eslao opined that Gilson’s anxiety was not severe enough to
be classified as an Anxiety Disorder. Gilson admitted to suicidal ideation, but without any
specific plan. Gilson reported that his depression first started in 1984 when he learned of his
former wife’s infidelity. R. 386. Dr. Eslao assigned a GAF score of 55, which correlates with
moderate symptoms or moderate difficulty in social and/or occupational functioning. R. 388.
Dr. Eslao prescribed 150 mg of Trazodone. At a followup appointment in April 2012, Gilson
reported that he was able to sleep better, but was still depressed. The dosage of Trazodone was
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increased to 200 mg. R. 389. In May 2012, Gilson reported that he had a bout of depression and
crying during the prior week, although he “feels better today” and that the increased dose of
Trazodone made him too sleepy. The dosage was reduced to 100 mg and Dr. Eslao also
prescribed Bupropion (Wellbutrin). R. 393. Gilson was diagnosed with Dysthymic Disorder and
Major Depressive Disorder, Recurrent, Unspecified. At an October 5, 2012 appointment with
Nurse Practitioner Abby Wenzel, Gilson reported that he was “not great but not bad” although he
also stated that he was “more low than high.” R. 398. Gilson had been unable to afford the
Wellbutrin prescribed by Dr. Eslao and had decided on his own to decrease his Trazodone
because his skin turned gray and he slept too much. Gilson was prescribed Celexa.
Mason Tootell, M.D., of the Warren Medical Group was Gilson’s treating physician from
February 2010 through July 2012 for various physical ailments, including COPD, hypertension,
a cough (related to smoking), a hematuria, edema in legs and feet, warts, a fungal infection,
hypertension, foot and hip pain, and arrhythmia associated with his pacemaker. Dr. Tootell
noted that Gilson was being treated for depression by Dr. Eslao. On November 30, 2012, Dr.
Tootell’s impression was “three months of temporary disability.” R. 379.
Beginning in September 2012, Gilson lost his insurance and began to receive medical
care at the Veterans Administration Medical Center (“VA”) with Jennifer Bulger, M.D. Gilson
reported that he could “carry at least twenty-four pounds up flight of 8 stairs,” which Dr. Bulger
classified as NYHA Class I. The ALJ explained that this designation is consistent with “no
limitation of physical activity.” R. 68. Dr. Bulger modified Gilson’s depression medications, set
up a behavioral health counseling session and advised him to return to the clinic in twelve
months. Gilson declined services regarding his obesity. On September 28, 2012, Gilson had a
mental health evaluation with Sarah Goebel, MSW, LCSW-R, at which he requested help with
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depression, anxiety and quitting smoking. Ms. Goebel assigned him a GAF score of 55. R. 348.
On November 1, 2012, Gilson had a followup appointment with Ms. Goebel, who noted that
Gilson had continued to look for work but without success. On November 29, 2012, Gilson met
with Gabriel N. Holland, D.O. Dr. Holland noted that the Celexa had caused tinnitus, diagnosed
Gilson with an “adjustment reaction,” and prescribed Wellbutrin. On December 10, 2012,
Gilson met again with Ms. Goebel and reported no side effects from the Wellbutrin. She
assigned him a GAF score of 60. R. 408. She noted that Gilson did not desire continued
services. R. 407. In her January 2013 note, Ms. Goebel described Gilson as alert and oriented/3,
neat and clean, mostly appropriate, open, cooperative, logical, teachable and goal oriented, but
wanting to have improved mood and sleep. He showed no signs of psychosis or thought disorder
and was independent in his activities of daily living. He continued to have adjustment disorder,
mixed, but was responding well to his medications and therapy. R. 415. Gilson reported that his
depression had been mild over the past two weeks. R. 417.
In March 2012 Gilson reported that he went to the store, to town, and on trips with his
wife (who has significant medical issues) and helped his mother clean the church. R. 245. He
reported the ability to care for his personal needs, prepare meals, perform household tasks such
as vacuuming and cutting the grass, shopping for meals, handling finances, and driving a car.
Gilson reported “some difficulty concentrating when listening to instructions.” R. 246. He was
able to follow written instructions “very well.” Gilson reported no difficulties in getting along
with others, including authority figures, and stated: “I get along with everybody well.” R. 247.
In a supplemental function questionnaire, Gilson reported cramps in his legs and feet from
walking extended distances or standing/sitting in one place for 30-45 minutes, and also back pain
if he lay down for over five hours. R. 250.
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Kerry Brace, Psy. D., completed a Disability Determination Explanation in April 2012
based on a records review.
He opined that Gilson had only “mild difficulties in social
functioning.” R. 313. Dr. Brace opined that Gilson’s ability to sustain an ordinary work routine
without special supervision, to maintain regular, punctual attendance, and to work in
coordination with and in proximity to others was not significantly limited. R. 316. Dr. Brace
opined that Gilson could meet the basic mental demands of competitive work on a sustained
basis. R. 317. The ALJ gave this opinion “great weight.” R. 71.
In April 2012, Paul Fox, M.D., performed a records review. Dr. Fox noted that Gilson
was able to independently perform routine household activities; had stopped work for reasons
unrelated to his alleged disabilities; and that his treatment for his medical conditions had been
routine, conservative and generally successful. R. 315.
Noah Robbins, M.D., an independent medical reviewer, testified at the hearing that
Gilson did not meet any of the Listed Impairments, although he noted the lack of an ECG or
pulmonary function test to show the extent of his cardiomyopathy and COPD. Dr. Robbins
initially based his opinion on a “worst case scenario” in which such tests would show significant
disease. Dr Robbins testified that in his worst case, Gilson might be limited to lifting ten pounds
occasionally, walking not more than two hours, sitting up to six hours with allowances to stand
after an hour to stretch his legs. R. 105. Upon questioning by the ALJ, Dr. Robbins agreed that
the heart issue may have been fully addressed by the installation of the pacemaker in 2007 and
that COPD would not limit a person’s ability to stand. R. 108. Dr. Robbins then modified his
opinion accordingly.
Carlos M. Jusino-Berrios, M.D., testified at the hearing as an independent psychological
expert. He noted a history of dystemic disorder, major depression and adjustment disorder, but
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noted that those conditions had arisen less than twelve months prior to the hearing date and that
Gilson had made a moderate improvement with treatment. Dr. Jusino-Berrios opined that Gilson
did not have a Listed Impairment and did retain the mental capacity to perform work. R. 114.
Gilson’s attorney chose not to cross-examine the witness.
The hypothetical posed to the VE included restrictions on lifting up to ten pounds, sit for
six hours with the option to get up and stretch every hour if needed, stand for up to six hours and
walk for two hours. The only mental restriction included in the hypothetical was that the person
be limited to simple, routine work. The VE testified that numerous light, unskilled positions
existed, including parking lot attendant, ticket taker and mail clerk.
The ALJ carefully followed the applicable five-step analysis. He found that Gilson had
not engaged in substantial gainful activity since March 31, 2010 and that he had severe
impairments of congestive heart failure and cardiomyopathy, COPD, obesity and adjustment
disorder. Of note, the ALJ did not find that Gilson’s depression was a severe impairment. The
ALJ expressly stated that he had considered Gilson’s obesity alone and in combination with
other impairments.
The ALJ explained that he had first determined that Gilson’s mental
impairments did not rise to a Listed Impairment and then separately engaged in a more-detailed
analysis of how those mental impairments affected Gilson’s residual functional capacity
(“RFC”). R. 66. The ALJ also explained at length that the intensity, persistence and limiting
effects of Gilson’s symptoms were not substantiated by the objective medical evidence or his
activities of daily living. R. 67-71. The ALJ found that Gilson could not perform his past work,
but could perform a limited range of light work such that he is not disabled.
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III.
Legal Analysis
A.
Standard of Review
The Act limits judicial review of disability claims to the Commissioner's final decision.
42 U.S.C. §§ 405(g). If the Commissioner’s finding is supported by substantial evidence, it is
conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399
F.3d 546, 552 (3d Cir. 2005). The United States Supreme Court has defined “substantial
evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389 (1971). It consists of more than a scintilla of
evidence, but less than a preponderance. Thomas v. Comm’r of Soc. Sec., 625 F.3d 798 (3d Cir.
2010).
When resolving the issue of whether an adult claimant is or is not disabled, the
Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920
(1995). This process requires the Commissioner to consider, in sequence, whether a claimant (1)
is working, (2) has a severe impairment, (3) has an impairment that meets or equals the
requirements of a listed impairment, (4) can return to his or her past relevant work, and (5) if not,
whether he or she can perform other work. See 42 U.S.C . § 404.1520; Newell v. Comm’r of Soc.
Sec., 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d
112, 118-19 (3d Cir. 2000)).
To qualify for disability benefits under the Act, a claimant must demonstrate that there is
some “medically determinable basis for an impairment that prevents him or her from engaging in
any substantial gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(1) (1982). This
may be done in two ways: (1) by introducing medical evidence that the claimant is disabled per
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se because he or she suffers from one or more of a number of serious impairments delineated in
20 C.F.R. Regulations No. 4, Subpt. P, Appendix 1, see Heckler v. Campbell, 461 U.S. 458
(1983); Newell, 347 F.3d at 545-46; Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004); or,
(2) in the event that claimant suffers from a less severe impairment, by demonstrating that he or
she is nevertheless unable to engage in “any other kind of substantial gainful work which exists
in the national economy . . . .” Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).
In order to prove disability under the second method, a claimant must first demonstrate
the existence of a medically determinable disability that precludes plaintiff from returning to his
or her former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503. Once it is shown that
claimant is unable to resume his or her previous employment, the burden shifts to the
Commissioner to prove that, given claimant’s mental or physical limitations, age, education and
work experience, he or she is able to perform substantial gainful activity in jobs available in the
national economy. Rutherford, 399 F.3d at 551; Newell, 347 F.3d at 546; Jones, 364 F.3d at 503;
Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).
When a claimant has multiple impairments which may not individually reach the level of
severity necessary to qualify any one impairment for Listed Impairment status, the
Commissioner nevertheless must consider all of the impairments in combination to determine
whether, collectively, they meet or equal the severity of a Listed Impairment. Diaz v. Comm’r of
Soc. Sec., 577 F.3d 500, 502 (3d Cir. 2009); 42 U.S.C. § 423(d)(2)(C) (“in determining an
individual’s eligibility for benefits, the Secretary shall consider the combined effect of all of the
individual’s impairments without regard to whether any such impairment, if considered
separately, would be of such severity”).
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B.
Discussion
Plaintiff raises essentially three arguments. First, he contends that the hypothetical posed
to the VE wrongfully failed to account for what the ALJ allegedly found to be a moderate
impairment in Gilson’s ability to maintain social functioning. Second, Plaintiff contends that the
ALJ failed to properly evaluate the medical and non-medical evidence, particularly as to Dr.
Robbins’ initial opinion that Gilson might have restrictions on standing and the effect of Gilson’s
obesity.
In the alternative, Plaintiff requests a “sentence six” remand for consideration of
medical records that were obtained after the administrative hearing. Finally, Plaintiff contends
that the ALJ erred in assessing the credibility of Gilson’s testimony. None of these contentions
have merit.
1.
Hypothetical posed to the VE
There is substantial evidence to support the ALJ’s conclusion that Gilson’s mental
impairments did not adversely affect his residual functional capacity to perform work other than
limiting it to simple, routine tasks. Thus, the hypothetical posed to the VE was not in error. The
ALJ concluded that “with therapy and medication, the claimant’s depression is largely stable.”
R. 67. The ALJ expressly explained that the reference to “moderate impairment in social
functioning” was made in the context of step 3 (whether Gilson’s mental conditions arose to a
Listed Impairment) and that the ALJ had performed a separate, more-detailed analysis of
Gilson’s RFC for step 5. R. 66. The ALJ then discussed the objective medical treatment notes,
GAF scores, and various medical assessments of Gilson’s abilities to interact with others. For
example, in determining the RFC the ALJ gave “great weight” to the opinion of Kerry Brace,
Psy. D. who opined that Gilson had only “mild difficulties in social functioning.” R. 71. The
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ALJ also cited the opinion of Dr. Jusino-Berrios that Gilson could perform competitive work.
R.71. There is substantial evidence in support of the ALJ’s determination.
2.
Evaluation of the Medical and Non-medical Record
The ALJ properly evaluated the medical and non-medical record. Dr. Robbins initially
provided an opinion based on a “worst case scenario.” The ALJ then asked a series of questions
to ascertain whether that “worst case” was appropriate, given the remainder of the medical
evidence. The real issue was the lack of any objective medical diagnostic tests (an ECG and a
pulmonary function test) regarding the extent of Gilson’s heart and lung problems. Dr. Robbins
agreed that the “worst case” was not appropriate and revised his opinion.
The ALJ then
accorded significant weight to the revised opinion, as he explained in his decision. R. 69. The
ALJ’s evaluation of Dr. Robbins’ opinion and refusal to endorse the “worst case scenario” was
entirely proper and well-supported by the record. In particular, the ALJ explained that Gilson
had been classified as NYHA 1 (no physical limitations) and that Dr. Tootell’s pulmonary
examinations were unremarkable. R. 68. At most, Dr. Tootell noted that Gilson had only a
three-month temporary disability. R. 379. The medical record as a whole supported the ALJ’s
conclusion that Gilson’s physical conditions did not prevent him from performing light work.
The ALJ properly analyzed the effects of obesity even though Gilson had not claimed
disability due to obesity. The ALJ nevertheless considered the effects of Gilson’s obesity both
alone and in combination pursuant to SSR 02-1p. The ALJ observed that Gilson was able to
perform such tasks as vacuuming, gardening, mowing grass and using a snowblower. The ALJ
further properly assessed and explained that Gilson’s obesity and other conditions had only
limited impact on his actual functional capacity. Diaz v. Commissioner, 577 F.3d 500, 504 (3d
Cir. 2009); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
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3.
Sentence Six Remand
After the administrative hearing, Plaintiff’s counsel arranged for a ECG and a pulmonary
function test. These records were not provided to the ALJ. Plaintiff argues that the case should
be remanded so that the ALJ could consider these tests. As explained in Matthews v. Apfel, 239
F.3d 589, 593 (3d Cir. 2001) (citations omitted), “when the claimant seeks to rely on evidence
that was not before the ALJ, the district court may remand to the Commissioner but only if the
evidence is new and material and if there was good cause why it was not previously presented to
the ALJ (Sentence Six review).”
Defendant opposes remand and contends that the evidence is not “new”; is not
“material”; and that Plaintiff failed to demonstrate good cause for not obtaining such evidence
prior to the administrative hearing. The Court agrees with Defendant that a “Sentence Six”
remand is not appropriate. Gilson could have asked his treatment providers at the VA to conduct
an ECG and functional capacity test in advance of the administrative hearing. Moreover, the
functional capacity evaluation performed on April 24, 2013 by Michelle Marion, PT, DPT
actually provided further support for the ALJ’s conclusion that Gilson could perform light (or
medium) exertion work and could likely work an eight-hour day. R. 504. Thus, the new
evidence would not be likely to change the result and is not material.
4.
Credibility Determinations
Plaintiff, finally, criticizes the ALJ’s credibility determinations and failure to fully credit
Gilson’s testimony regarding his limitations. It is the ALJ’s responsibility to make credibility
findings regarding subjective complaints based on his interaction with the claimant. “Generally,
the ALJ's assessment of a plaintiff's credibility is afforded great deference, because the ALJ is in
the best position to evaluate the demeanor and attitude of the plaintiff.” Ayers v. Astrue, 724 F.
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Supp.2d 471, 479 (D. Del. 2010). Here, Plaintiff takes issue with the ALJ’s comment that Gilson
received “only routine and conservative care,” which Plaintiff attributes to his financial situation.
It is clear from the ALJ’s opinion and the underlying medical records, however, that the ALJ’s
comment was well-supported – the treatment notes showed, as the ALJ accurately stated, a
generally stable condition and largely unremarkable physical and mental status examinations
which were consistent with conservative treatment. Plaintiff also argues that the ALJ failed to
connect his credibility determinations about daily activities to the limitations on his activities.
To the contrary, the ALJ directly explained why he felt that Gilson’s activities of daily living
were inconsistent with a finding of total disability. R. 68.
IV.
Conclusion
It is undeniable that Plaintiff has a number of impairments, and this Court is sympathetic
and aware of the challenges which Plaintiff faces in seeking gainful employment. Under the
applicable standards of review and the current state of the record, however, the Court must defer
to the reasonable findings of the ALJ and his conclusion that Plaintiff is not disabled within the
meaning of the Social Security Act, and that he is able to perform a limited range of work at the
light exertional level.
For these reasons, the Court will DENY the Motion for Summary Judgment filed by
Plaintiff and GRANT the Motion for Summary Judgment filed by the Commissioner. An
appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 1:14-cv-00232-TFM
)
)
)
)
)
PATRICK F. GILSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
ORDER
AND NOW, this 22nd day of April, 2015, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that Plaintiff’s MOTION
FOR SUMMARY JUDGMENT (ECF No. 8) is DENIED, and Defendant’s MOTION FOR
SUMMARY JUDGMENT (ECF No. 10) is GRANTED.
BY THE COURT:
s/ Terrence F. McVerry
United States District Judge
cc:
Beth Arnold
Email: fedcourt@binderlawfirm.com
Christian A. Trabold
Email: christian.a.trabold@usdoj.gov
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