Williams v. Berryhill
Filing
17
MEMORANDUM AND ORDER denying 12 Plaintiff's MOTION for Summary Judgment ; and granting 13 Defendant's Cross MOTION for Summary Judgment and Brief in Support of Cross-Motion for Summary Judgment (Signed by Magistrate Judge Christina A Bryan) Parties notified.(cjan, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHEDRICK L. WILLIAMS,
Plaintiff,
v.
NANCY A. BERRYHILL,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
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August 21, 2018
David J. Bradley, Clerk
CIVIL ACTION NO.: 4:17-CV-1621
MEMORANDUM AND ORDER
Plaintiff Shedrick L. Williams, filed this case under the Social Security Act, 42 U.S.C. §§
405(g) for review of the Commissioner’s final decision denying his request for social security
disability insurance benefits. Williams and the Commissioner filed cross-motions for summary
judgment (Dkts. 12, 13). After considering the pleadings, the record, and the applicable law, the
court DENIES Williams’s motion, GRANTS the Commissioner’s motion, and affirms the
decision of the Commissioner.1
I. Background
1. Factual and Administrative History
Shedrick L. Williams filed a claim for social security disability insurance benefits on
March 28, 2014 alleging the onset of disability as of March 11, 20122 due to seizures, high blood
pressure, brain surgery, heart trouble, and vision trouble. Dkt. 6-3 at 11; Dkt. 6-6 at 2; Dkt. 6-7 at
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The parties have consented to the jurisdiction of this magistrate judge for all purposes, including entry of final
judgment. Dkt. 15.
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Williams alleged onset as of March 3, 2011 in his application, but amended it to March 11, 2012 at the hearing.
Dkt. 6-3 at 49.
6. His claim was denied on initial review and reconsideration. The administrative law judge
(ALJ) held a hearing on November 9, 2015 at which Williams and a vocational expert testified.
Dkt. 6-3 at 36-62. The ALJ issued an unfavorable decision on March 2, 2016. Dkt. 6-3 at 11-27.
Williams requested review by the Appeals Council of the ALJ’s unfavorable decision,
which was denied on March 24, 2017, and the ALJ’s decision became the final decision of the
Commissioner. See 20 C.F.R. §§ 404.984(b)(2) and 416.1484(b)(2).
2. Standard for District Court Review of the Commissioner’s Decision
Section 405(g) of the Act governs the standard of review in social security disability
cases. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Federal court review of the
Commissioner’s final decision to deny Social Security benefits is limited to two inquiries: (1)
whether the Commissioner applied the proper legal standard; and (2) whether the
Commissioner’s decision is supported by substantial evidence. Copeland v. Colvin, 771 F.3d
920, 923 (5th Cir. 2014); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
With respect to all decisions other than conclusions of law,3 “[i]f the Commissioner’s
findings are supported by substantial evidence, they are conclusive and must be affirmed.” Perez
v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence has also been defined as “more than a mere scintilla and less than a
preponderance.” Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). When reviewing the Commissioner’s decision, the
court does not reweigh the evidence, try the questions de novo, or substitute its own judgment for
that of the Commissioner. Masterson, 309 F.3d at 272. Conflicts in the evidence are for the
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Conclusions of law are reviewed de novo. Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981).
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Commissioner to resolve, not the courts. Id. The courts strive for judicial review that is
“deferential without being so obsequious as to be meaningless.” Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999).
The court weighs four types of evidence in the record when determining whether there is
substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) the claimant's subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th
Cir.1991); Hamilton-Provost v. Colvin, 605 Fed. App’x 233, 236 (5th Cir. 2015).
3. Disability Determination Standards
The ALJ must follow a five-step sequential analysis to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920; Waters, 276 F.3d at 718. The Social Security Act
defines “disability” as 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 twelve
months.” Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (citing 42 U.S.C. § 423(d)(1)(A)).
A finding at any point in the five-step sequence that the claimant is disabled, or is not disabled,
ends the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
In the first step, the ALJ decides whether the claimant is currently working or “engaged
in substantial gainful activity.” Work is “substantial” if it involves doing significant physical or
mental activities, and “gainful” if it is the kind of work usually done for pay or profit. 20 C.F.R.
§§ 404.1572, 416.972; Copeland v. Colvin, 771 F.3d 920, 924 (5th Cir. 2014).
In the second step, the ALJ must determine whether the claimant has a severe
impairment. Under applicable regulations, an impairment is severe if it “significantly limits your
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physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.20(c).
Under Fifth Circuit binding precedent, “[a]n impairment can be considered as not severe only if it
is a slight abnormality having such minimal effect on the individual that it would not be expected
to interfere with the individual’s ability to work, irrespective of age, education or work
experience.” Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (emphasis added)
(quoting Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)). “Re-stated, an impairment is
severe if it is anything more than a “slight abnormality” that “would not be expected to interfere”
with a claimant’s ability to work. Id. This second step requires the claimant to make a de
minimis showing. See Anthony v. Sullivan, 954 F.2d 289, 293 n.5 (5th Cir. 1992).” Salmond v.
Berryhill, 892 F.3d 812, 817 (5th Cir. 2018).
If the claimant is found to have a severe impairment, the ALJ proceeds to the third step of
the sequential analysis: whether the severe impairment meets or medically equals one of the
listings in the regulation known as Appendix 1. 20 C.F.R. Part 404, Subpart P, Appendix 1. If
the impairment meets one of the listings in Appendix 1, the claimant is disabled. If the ALJ
finds that the claimant’s symptoms do not meet any listed impairment, the sequential analysis
continues to the fourth step.
In step four, the ALJ must decide whether the claimant can still perform his past relevant
work by determining the claimant’s “residual functional capacity” (RFC). “The RFC is the
individual’s ability to do physical and mental tasks on a sustained basis despite limitations from
her impairments.” Giles v. Astrue, 433 Fed. App’x 241, 245 (5th Cir. 2011) (citing 20 C.F.R.
404.1545). The ALJ must base the RFC determination on the record as a whole and must
consider all of a claimant’s impairments, including those that are not severe. Id.; 20 C.F.R. §§
404.1520(e) and 404.1545; see also Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990).
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The claimant bears the burden to prove disability at steps one through four, meaning the
claimant must prove she is not currently working and is no longer capable of performing her past
relevant work. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). If the claimant meets her
burden, the burden shifts to the commissioner at step five to show that the “claimant is capable of
engaging in some type of alternative work that exists in the national economy.” Id. Thus, in order
for the Commissioner to find in step five that the claimant is not disabled, the record must
contain evidence demonstrating that other work exists in significant numbers in the national
economy, and that the claimant can do that work given her RFC, age, education, and work
experience. Fraga v. Brown, 810 F.2d 1296, 1304 (5th Cir. 1998).
4. The ALJ’s Decision
The ALJ performed the standard 5-step sequential analysis. The ALJ found that Williams
met the insured status requirements of the Social Security Act through December 31, 2017, and
did not engage in substantial gainful activity after March 11, 2012, his alleged onset date. The
ALJ found that Williams has the severe impairments of obesity, degenerative osteoarthritis of the
lumbar spine, mild cardiomegaly, past history of bradycardia, seizure disorder, and ataxia, as
well as several non-severe impairments. Dkt. 6-3 at 14. The ALJ analyzed Williams’s mental
impairments under the “special technique” for mental impairments, 20 C.F.R. 1520a(d)(2). Dkt.
6-3 at 14-18. The ALJ found that Williams’s impairments did not meet or equal the severity of a
listed impairment in Appendix 1. Dkt. 6-3 at 18-19.
The ALJ found Williams had the residual functional capacity to perform light work,
except that “he cannot climb ropes, ladders, or scaffolds. He cannot work around hazards such as
unprotected heights, open water or flame and/or dangerous moving machinery.” Dkt. 6-3 at 19.
Based on the testimony of a vocational expert, the ALJ found that Williams could not perform
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his past relevant work as a chemical plant operator, but considering his age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national economy
that claimant could perform and therefore he was not disabled at any time from his alleged onset
date through the date of the ALJ’s decision. Dkt. 6-3 at 25-27.
II. Analysis
Williams argues that the ALJ’s RFC decision is not supported by substantial evidence
because the ALJ rejected the medical opinions of consulting physicians and did not develop the
record by obtaining a medical opinion from a treating source. Williams contends that had the
ALJ found him to be limited to sedentary work due to seizures, he would have been disabled
pursuant to medical vocational guidelines. Dkt. 12 at 5.
1. The RFC determination.
In making her RFC determination, the ALJ considered the record as a whole, including
Williams’s medical records, reported activities of daily living, hearing testimony, and the
medical opinion evidence. Dkt. 6-3 at 25. In doing so, the ALJ considered the opinion of a
consulting examiner, Dr. Parul R. Shah, who performed a disability evaluation May 28, 2014.
Dkt. 6-8 at 59-61. Shah performed a physical examination, which was unremarkable. Then,
based solely on Williams’s self-reporting, Shah concluded that Williams’s “seizures are not
controlled with Dilantin and he is not able to drive or do any work because of his seizures. He is
physically disabled.” Dkt. 6-8 at 60. The ALJ gave Shah’s opinion little weight because “it is not
supported by the objective clinical findings and inconsistent with the other substantial evidence
in the case record” showing that Williams’s seizures in fact are well-controlled on medication.
Dkt. 6-3 at 22.
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The ALJ also considered the physical and mental residual functional capacity opinions
from state agency consulting physicians who reviewed the case at the initial and reconsideration
stages. Dkt. 6-3 at 25; Dkt. 6-4 at 7-19; Dkt. 6-4 at 21-34. The ALJ rejected the mental capacity
opinions because they were based on a one-time consultative psychological examination, not on
Williams’s medical history as a whole. Dkt. 6-3 at 25. The ALJ accepted the physical capacity
opinions only in part, because the opinions concluded that Williams could perform a limited
range of medium work, but “evidence received at the hearing level shows that the claimant is
more limited physically than was determined by the State Agency’s consultants.” Id.
Williams’ medical records do indicate a history of seizures. However, records from 20102012 primarily relate to his treatment for hypertension with few references to seizures. Dkt. 6-8
at 37-58. Treatment notes from June 21, 2012 indicate Williams reported his last seizure 2-3
months ago. Dkt. 6-8 at 36. Treatment notes from December 28, 2012 state Williams was doing
well, his depression and anxiety was improved and controlled with medication, he had stopped
seeing his cardiologist, his hypertension was controlled with medication, and he had a small
seizure 3 months prior. Dkt. 6-8 at 34. His next visit was April 12, 2013. He did not mention any
new seizures and physical exam was unremarkable. Dkt. 6-8 at 33.
Williams’s counsel referred him for a psychological evaluation with Dr. Jim Whitley on
September 23, 2013. Williams reported to the psychologist that he had “five bad seizures” after
brain surgery in 1994, most recently in June 2013. Dkt. 6-8 at 10-11. Dr. Whitley diagnosed
Williams with mood disorder, somatization disorder, and cognitive disorder and opined his
prognosis is very poor and “he is currently unemployable.” Dkt. 6-8 at 16. At an October 8, 2013
check up, the doctor noted Williams had hypertension, seizure disorder, and morbid obesity, but
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Williams did not report any recent seizures. Dkt. 6-8 at 31. The treatment notes do not mention
any mental disorder. Id.
On February 6, 2014, Williams told his doctor he had had no recent seizures or syncope.
Dkt. 6-8 at 30. Williams visited the emergency room on February 12, 2014 for low back pain
resulting from lifting a bucket, but was released in good condition with pain medication. Dkt. 6-8
at 23.
In April 2014, Williams established a primary care relationship with a doctor at the
Veteran’s Administration Medical Center. Dkt. 6-9 at 2. He reported his history of seizures
developed after his 1994 surgery and that his primary care physician was monitoring his
medication, but he did not report any recent seizures. Dkt. 6-9 at 5. Williams was referred to a
weight management program, id., and in July 2014 he was considered “safe to engage in physical
activity” with “no exercise limitations.” Dkt. 6-8 at 74. In August 2014, he complained of blurry
vision and face numbness and was referred to a neuro-ophthalmology clinic, but did not
complain of a seizure. Dkt. 6-9 at 18-20, 29. At a September 2014 check-in he reported walking
and/or riding a stationary bicycle twice a day for 30 minutes and did not report any seizures. Dkt.
6-9 at 21. Notes from an October 22, 2014 primary care follow-up state “Patient had a seizure in
last one month on phenytoin,” but no details of the incident are provided, Dkt. 6-9 at 25, and
there are no records indicating he sought emergency treatment. At his neuro-ophthalmology
appointment on October 27, 2014 he reported blurry vision and was told to return for follow up
after an MRI. Dkt. 6-9 at 33. The MRI showed “no evidence of intracranial aneurysm or fistula,”
but “Right lateral cerebellar resection cavity without lining suspicious for residual or recurrent
tumor.” Dkt. 6-9 at 49. An EEG in January 2015 was abnormal, but Williams was instructed to
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continue Dilantin and physical therapy and follow-up in 6 months for a repeat MRI. Dkt. 6-8 at
76.
In February 2015, returned to the VA for a neurosurgery consult. Although his seizure
disorder was noted in his history, he told his physician that “persistent balance problems since
surgery . . . bother him the most” and he denied any neuro/psychiatric or musculo/skeletal
problems. Dkt. 6-89 at 80-81. He began physical therapy for his balance and gait issues in
February 2015. Dkt. 6-9 at 87. The provider noted that Williams self-reporting of his condition
was contradictory, stating at one point his equilibrium problems started in 1994 and another time
in 2008. Dkt. 6-9 at 88. He also told the provider that his last seizure was in December and they
are more controlled now. Id. At a February 24, 2015 physical therapy session Williams reported
that he was “seeing a difference” and he demonstrated “improved static standing balance.” Dkt.
6-9 at 101. On March 23, 2015, Williams reported “I’m starting to see a difference. It’s really
helping me. My balance is improving, too” and he reported at his March 31, 2015 session that
“he is getting better and able to do more.” Dkt. 6-9 at 105, 6-10 at 4. In April 2015, he reported
to his physical therapist that he had a seizure that week “for the first time in a long time.” Dkt. 610 at 3. On April 28, 2015 Williams stated “I don’t know if you’ve noticed, but I’m a whole lot
better than I was when I first came here.” Dkt. 6-10 at 16. Williams attended his last physical
therapy session on May 28, 2015. He reported walking more. His therapist noted Williams was
seen for 17 sessions, “focused on stretching, strengthening, posture, core strengthening, balance,
and education,” and made much improvement, meeting ¾ of his goals. Dkt. 6-10 at 20. He was
instructed to re-consult in the future if needed. Id.
On June 2, 2015, Williams was admitted to the hospital due to a possible seizure. Dkt. 610 at 35. No functional deficits were noted. Dkt. 6-10 at 44. He described the types of events he
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has a history of experiencing as (1) “feet going up and down” while sitting or lying down, he is
able to stop the movements, 2-3 times per week; (2) “head bobbing” as if dozing off when in car
or doing cross word puzzles, 1-2 times per week; and (3) “staring while standing . . . slowly fell
to the ground.” Dkt. 6-10 at 52. His wife has observed type three only once, and Williams
reported it had happened only 3 times in his lifetime. Id. He was reassured that there was “no
particular concern” and underwent observation and neurological testing. Id. He was discharged
with a diagnosis of benign nonepileptic events and focal epilepsy–complex partial seizures and
given no activity restrictions. Dkt. 6-11 at 11-12. At a follow up in August 2015, it was noted
that Williams was doing well, with no further seizures. Dkt. 6-11 at 17. At a neurology consult in
September, 2015, Williams reported gait difficulty, but stated that Dilantin helped his seizures.
Dkt. 6-11 at 28. He was advised not to drive until 6 months after his last event, and not to operate
heavy machinery or work from heights and not to swim or bathe alone. Dkt. 6-11 at 31.
In determining that Williams had the RFC to perform a limited range of light work, the
ALJ concluded:
In sum, the longitudinal medical evidence as well as the claimant’s activities of
daily living support the residual functional capacity. Due consideration has been
given to credibility, motivation, the objective medical evidence and opinion,
clinical and laboratory findings, diagnostic tests, the extent of medical treatment
and relief from medication and therapy, the claimant’s daily activities, the extent,
frequency, and duration of symptoms, attempts to seek relief from symptoms, the
claimant’s earnings record, and all the evidence of record.
Dkt. 6-3 at 25. Based on the evidence of record discussed above, the court concludes that the
ALJ did not err when deciding the weight to afford the consulting physician medical opinions
and the RFC determination is supported by substantial evidence.
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2. Duty to develop the record.
It is well-established that “the ALJ has a duty to develop the facts fully and fairly relating
to an applicant’s claim for disability benefits.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995).
The ALJ in this case noted that no treating physician had expressed an opinion regarding
Williams’ ability to perform work-related functions. Dkt. 6-3 at 25. However, the absence of a
medical source statement describing the types of work a claimant is capable of performing does
not necessarily make the record incomplete. Ripley, 67 F.3d at 557. Instead, in the absence of a
medical statement describing the types of work that the applicant is still capable of performing,
the “…inquiry focuses on whether the ALJ’s decision is supported by substantial evidence in the
existing record.” Id.
In Ripley, the Fifth Circuit held that the ALJ’s conclusion was not supported by
substantial evidence. Id. Despite “a vast amount of medical evidence establishing that Ripley
ha[d] a problem with his back,” and Ripley’s own testimony that he could not “sit or stand for
any length of time without experiencing a great deal of pain[,] [t]he ALJ concluded that he was
capable of sitting for six hours of work a day because he … went to church, rode in a car for an
hour and a half to attend the hearing, and occasionally drove.” Id. at 557, n.28. In its opinion, the
Fifth Circuit noted the absence of a medical source opinion regarding Ripley’s limitations, and
the ALJ’s failure to consider Ripley’s testimony that he was unable to sit for the entire duration
of the drive to the hearing and he had to lay down in the back of the station wagon. Id. at 554,
n.4; at 557, n.28. Therefore, citing 20 CFR § 404.1527(c)(3), which requires an ALJ to obtain
additional information regarding an applicant’s ability to work when the record is insufficient to
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make a determination of disability, the Fifth Circuit instructed the court on remand to obtain a
report from a treating physician.4
The ALJ in this case had access to a consultant expert’s report, state agency medical
opinions, the longitudinal medical evidence, and evidence of Williams’ activities of daily living.
Williams argues that Ripley requires remand because the ALJ afforded little weight to the
consultant expert report, and refused to accept all of the opinions put forth by the state agency
consultants. It is the ALJ’s duty to weigh the evidence, resolve material conflicts in the evidence,
and decide the case. Johnson v. Bowen, 864 F.2d 340, 347 (5th Cir. 1988). The ALJ in this case
considered the consultant expert’s opinion and gave it little weight because it was “not supported
by the objective clinical findings” and was “inconsistent with other substantial evidence in the
case record.” Dkt. 6-3 at 22. Furthermore, the ALJ considered the state agency consultants’
opinions that Williams was able to perform a limited range of medium work, but found that
“evidence received at the hearing level shows that the claimant is more limited physically than
was determined by the state agency consultants.” Dkt. 6-3 at 25. The ALJ’s resolution of
conflicts in the evidence and her resulting decisions as to how much weight or effect to give to
medical and consultant opinions does not transform the case into one lacking substantial
evidence for the ALJ’s decision.
This case more closely parallels Guitierrez v. Barnhart, No. 04-11025, 2005 WL
1994289 *6 (5th Cir. Aug. 19, 2005) than Ripley. In Guitierrez, the Fifth Circuit concluded that
the ALJ’s RFC determination was supported by substantial evidence without the need for an
updated medical source opinion on Gutierrez’s ability to perform work even though the ALJ
“essentially rejected part of the medical opinion” of Gutierrez’s treating physician and the state
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The Fifth Circuit had already determined that remand of Ripley’s case was necessary for another reason when it
considered whether the ALJ had fulfilled his duty to fully develop the record and substantial evidence supported the
determination of no disability. Id. at 556.
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agency reviewing physician. Id.; see also Cornett v. Astrue, 261 Fed. App’x 644, 649 (the duty to
contact a medical source arises only when the record is inadequate to determine disability). Here,
the state agency consultants opined that Williams was able to perform a limited range of medium
exertion work. Dkt. 6-3 at 25. Implicit in these opinions is the opinion that Williams was able to
perform work at the light exertion level. See 20 C.F.R. § 404.1567(c) (“If someone can do
medium work, we determine that he or she can also do sedentary and light work.”). The court
concludes that substantial evidence supports the ALJ’s RFC determination and therefore, the
ALJ did not err by failing to re-contact a treating physician to obtain a supplemental opinion.
III. Conclusion
The court concludes that the ALJ’s decision is supported by substantial evidence and is
not based on an error of law. Therefore, Williams’s motion is DENIED, the Commissioner’s
motion is GRANTED, and the Commissioner’s decision denying benefits is AFFIRMED.
Signed on August 21, 2018, at Houston, Texas.
Christina A. Bryan
United States Magistrate Judge
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