Lisa Wright v. Michael J Astrue, No. 5:2008cv00666 - Document 21 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details). (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LISA WRIGHT, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 08-666 AGR MEMORANDUM OPINION AND ORDER Lisa Wright filed this action on May 22, 2008. Pursuant to 28 U.S.C. § 18 19 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on 20 June 18 and July 26, 2008. (Dkt. Nos. 8, 9.) On April 2, 2009, the parties filed a 21 Joint Stipulation ( J.S. ) that addressed the disputed issues. The Court has taken 22 the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On March 22, 2005, Wright filed an application for disability insurance 4 benefits, alleging a disability onset date of April 7, 2004. A.R. 12. The 5 application was denied initially and upon reconsideration. Id. An Administrative 6 Law Judge ( ALJ ) conducted a hearing on February 4, 2008, at which Wright, 7 two medical experts and a vocational expert testified. A.R. 12, 590-616. On 8 February 29, 2008, the ALJ issued an unfavorable decision. A.R. 9-23. On April 9 21, 2008, the Appeals Council denied Wright s request for review. A.R. 5-7. This 10 lawsuit followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled and is eligible for benefits, only if his 5 physical or mental impairment or impairments are of such severity that he is not 6 only unable to do his previous work but cannot, considering his age, education, 7 and work experience, engage in any other kind of substantial gainful work which 8 exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. 9 Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 Wright meets the insured status requirements through June 30, 2010. The ALJ s Findings 12 A.R. 14. Wright has the following severe combination of impairments: status 13 post right carpal tunnel release and ganglion cyst excision [ ], right knee synovitis 14 with patellofemoral malalignment [ ], disc protrusions at multiple levels of the 15 lumbosacral spine, with evidence of nerve root involvement [ ]. A.R. 14-15 16 (citations to record omitted). 17 The ALJ found that Wright has the residual functional capacity ( RFC ) to 18 lift and carry 25 pounds occasionally, 10 pounds frequently, standing and walking 19 for 4 hours in an 8-hour workday, sitting for 6 hours. She may engage in 20 occasional postural activity, except she is precluded from climbing ropes, ladders 21 and scaffolds, or working at unprotected heights. She is limited to occasional use 22 of foot pedals with the right lower extremity, and may engage in fine and gross 23 manipulation, as well as in reaching above shoulder level, frequently, but not 24 continuously. She has no other significant limitations except that she should be 25 permitted to use a cane to walk long distances. A.R. 16. 26 27 Wright cannot perform her past relevant work. A.R. 21. However, there are jobs that exist in significant numbers in the national economy that the 28 3 1 claimant can perform, such as jewelry preparer, optical lens inserter, and final 2 assembler, optical goods. A.R. 21-22. 3 C. 4 At Step Two, the claimant bears the burden of demonstrating a severe, Step Two of the Sequential Analysis 5 medically determinable impairment that meets the duration requirement. 20 6 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 7 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration requirement, the 8 impairment must have lasted or be expected to last for a continuous period of not 9 fewer than 12 months. Id. at 140. 10 Your impairment must result from anatomical, physiological, 11 or psychological abnormalities which can be shown by 12 medically acceptable clinical and laboratory diagnostic 13 techniques. A physical or mental impairment must be 14 established by medical evidence consisting of signs, 15 symptoms, and laboratory findings, not only by your 16 statement of symptoms. 17 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be 18 one that significantly limits your physical or mental ability to do basic work 19 activities. 1 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); 20 Smolen, 80 F.3d at 1290 ( [A]n impairment is not severe if it does not significantly 21 limit [the claimant s] physical ability to do basic work activities. ) (citation and 22 quotation marks omitted). 23 24 25 26 27 28 An impairment or combination of impairments may be found not severe 1 The ability to do basic work activities includes physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting. Yuckert, 482 U.S. at 168 (internal quotation marks omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 4 1 only if the evidence establishes a slight abnormality that has no more than a 2 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 3 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step Two is 4 a de minimis screening device [used] to dispose of groundless claims and the 5 ALJ s finding must be clearly established by medical evidence. Id. at 687 6 (citations and quotation marks omitted). [T]he ALJ must consider the combined 7 effect of all of the claimant s impairments on her ability to function, without regard 8 to whether each alone was sufficiently severe. Smolen, 80 F.3d at 1290. The 9 ALJ is also required to consider the claimant s subjective symptoms, such as 10 pain or fatigue, in determining severity. Id. The Commissioner does not 11 consider age, education, and work experience. 20 C.F.R. § 404.1520(c). 12 D. Medical Opinions 13 An opinion of a treating or examining physician is given more weight than 14 the opinion of a non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 15 2007). When a treating physician s opinion is contradicted by another doctor, 16 the ALJ may not reject this opinion without providing specific and legitimate 17 reasons supported by substantial evidence in the record. This can be done by 18 setting out a detailed and thorough summary of the facts and conflicting clinical 19 evidence, stating his interpretation thereof, and making findings. Id. at 632 20 (citations and internal quotations omitted). 21 An examining physician s opinion constitutes substantial evidence when it 22 is based on independent clinical findings. Id. However, [w]hen an examining 23 physician relies on the same clinical findings as a treating physician, but 24 differs only in his or her conclusions, the conclusions of the examining physician 25 are not substantial evidence. Id. 26 A non-examining physician s opinion constitutes substantial evidence 27 when it is supported by other evidence in the record and consistent with it. 28 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, a non5 1 examining physician s opinion cannot by itself constitute substantial evidence. 2 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006). 3 When there is conflicting medical evidence, the Secretary must 4 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 5 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 6 (1) Dr. DeSilva s Opinion 7 Wright contends that the ALJ failed to properly consider Dr. DeSilva s 8 psychological opinion that Wright suffers from bipolar disorder, depressed; pain 9 disorder associated with psychological factors and general medical condition; and 10 alcohol abuse (in remission as of November 2004). J.S. at 3; A.R. 282, 296. 11 The ALJ acknowledged DeSilva s diagnosis. A.R. 15. However, the 12 mere existence of an impairment is insufficient proof of a disability. Matthews v. 13 Shalala, 10 F.3d 678, 680 (9th Cir 1993). A claimant must show that she is 14 precluded from engaging in substantial gainful activity by reason of her 15 impairments. Id. (citing 42 U.S.C. § 423(d)(1)(A)). Here, the ALJ concluded that 16 the claimant has failed to establish the presence of a severe psychiatric 17 impairment by reliable psychiatric evidence. A.R. 16. 18 DeSilva prepared two evaluations, the first dated June 1, 2004 and the 19 second dated November 1, 2004. A.R. 280-87, 294-301. In both evaluations, 20 DeSilva diagnosed Wright with bipolar disorder, depressed (and aggravated in 21 the November 2004 evaluation); pain disorder associated with psychological 22 factors and general medical condition; and alcohol abuse (in remission in 23 November 2004). A.R. 282, 296. She administered a battery of psychological 24 tests, including the Minnesota Multiphasic Personality Inventory ( MMPI )-2, Milan 25 Clinical Multiaxial Inventory ( MCMI )-III, Bender Visual Motor Gestalt test, 26 House-Tree-Person, Rotter Incomplete Sentence Blank-Adult Form, Digit Span 27 subtest of the WAIS-III, Logical Memory subtest of the Wechsler Memory Scale- 28 Form 1, Beck Anxiety Inventory, Beck Depression Inventory-II and the Shipley 6 1 Institute of Living Scale for the June 2004 evaluation, A.R. 297; and the MMPI-2, 2 MCMI-3, Beck Anxiety Inventory, and Beck Depression Inventory II for the 3 November 2004 evaluation, A.R. 282. For the November 2004 evaluation, she 4 also reviewed treatment progress notes from her offices. A.R. 284. 5 The ALJ rejected DeSilva s opinion for two reasons. First, the ALJ found 6 no evidence that DeSilva had a treating relationship with Wright and, therefore, 7 did not give her opinions the weight generally afforded those of a treating 8 medical or psychiatric source. A.R. 15. This finding is not supported by 9 substantial evidence. DeSilva saw Wright at least twice in a five month period. 10 A.R. 294-301 (June 1, 2004), 280-87 (November 1, 2004). DeSilva stated that 11 Wright s primary physician, Dr. Doty, referred Wright to our office for consultation 12 and treatment on April 27, 2004. A.R. 299, 452. In November 2004, DeSilva 13 noted that Wright has been coming to our outpatient clinic for the treatment of 14 her Bipolar Disorder, depressed. And Pain Disorder associated with both 15 psychological factors and a general medical condition. A.R. 281. DeSilva 16 reviewed the treatment progress notes from our offices. A.R. 284. Although the 17 treatment notes are not in the record and there is no mention of who treated 18 Wright in the outpatient clinic, DeSilva refers to herself as a treating physician in 19 the November 2004 report. A.R. 280. On this record, the ALJ s finding that there 20 is no treating relationship is not supported by substantial evidence.2 See Benton 21 v. Barnhart, 331 F.3d 1030, 1038-39 (9th Cir. 2003) (physician who examined 22 patient once may complete Mental RFC Assessment on behalf of treatment 23 team); Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir.1994) (physician who 24 saw claimant twice within 14-month period, prescribed medication and referred to 25 him as my patient was treating physician); 20 C.F.R. § 404.1502. Nevertheless, 26 27 28 2 The result is the same whether Dr. DeSilva is considered a treating or examining physician, since in either case, the Commissioner can only reject the physician's opinion for specific and legitimate reasons that are supported by substantial evidence in the record. Widmark, 454 F.3d at 1066. 7 1 the ALJ may consider the shortness of DeSilva s treating relationship in 2 assessing her opinion. See Benton, 331 F.3d at 1038-39. 3 Second, the ALJ noted that the examining physician, Dr. Rubenstein, the 4 medical expert, Dr. Griffin, and the state agency consultant found that any mental 5 impairment was not severe. A.R. 15-16, 345. By contrast, despite indications 6 that Wright is magnifying or exaggerating symptoms in testing, DeSilva provides 7 no explanation for why the claimant s allegations and presentation should, 8 nevertheless, be considered reliable a 9 10 nd/or why her opinions and conclusions remain valid. A.R. 16. This reason is supported by substantial evidence. 11 The examining physician, Dr. Rubenstein, examined Wright on September 12 16, 2004. A.R. 310. Rubenstein diagnosed depressive disorder NOS and 13 personality disorder NOS. A.R. 323. Wright tested as exaggerating symptoms, 14 which indicated that she was likely to be exaggerating in other contexts including 15 the evaluation interview.3 A.R. 326. 16 Based upon his evaluation, which included an extensive analysis of 17 Wright s work history, Rubenstein concluded that from the standpoint of 18 psychological distress including anxiety and depression, Ms. Wright is able to 19 function without handicap and without psychological hindrance. A.R. 327. 20 Rubenstein found an absence of psychologically based work limitation with 21 regard to her ability to cope with tasks that are varied and complex. From a 22 cognitive perspective, Ms. Wright does not have a work handicap. A.R. 328. 23 However, Rubenstein did find some long-term and continuing psychologically 24 25 26 27 28 3 The Court notes, as did the ALJ, that the medical expert testified that Wright had undergone testing by separate examiners and, on each occasion, the test results were invalid based on elevated scores indicating exaggeration. A.R. 609-10. Given the consistently invalid test results, the medical expert testified that I don t have a medical basis for concluding that she has a disorder. A.R. 610. 8 1 based work limitation from the standpoint of Personality Disorder. 4 A.R. 332. 2 Rubenstein found no limitation on Wright s ability to comprehend and 3 follow instructions, perform simple and repetitive tasks, maintain a work pace 4 appropriate to a given workload, perform complex tasks, make decisions without 5 immediate supervision, and accept and carry out responsibility. A.R. 333-37. 6 Using the Raven Standard Progressive Matrices, which tests sustained focus and 7 concentration in a contest of higher levels of thinking, Wright scored above 8 average. A.R. 332. Rubenstein also noted Wright s ability to perform activities of 9 daily living such as shopping, cooking, driving, cleaning, traveling, and occasional 10 bicycle riding. A.R. 334. However, Rubenstein found minimal to slight limitation 11 in Wright s ability to relate to other people beyond giving and receiving 12 instructions, and ability to influence people. A.R. 336. Wright has demonstrated 13 repeated maladaptive behavioral patterns interfering with her ability to effectively 14 relate to, communicate with, and influence others at work. A.R. 332. 15 Rubenstein found that, from a psychological perspective, Wright could return to 16 her usual and customary work.5 A.R. 332. 17 Rubenstein s opinion supports a finding that Wright s mental impairment is 18 not severe.6 See 20 C.F.R. § 404.1520a(d)(1). As an examining physician s 19 opinion based on independent clinical findings, Rubenstein s opinion constitutes 20 substantial evidence. Orn, 495 F.3d at 632. 21 As discussed above, the ALJ discounted DeSilva s opinion because her 22 23 24 25 26 27 28 4 Wright told Rubenstein that, in the past, she had repeated suicide attempts and hospitalizations. More recently, she had a hallucination. A.R. 330. Wright told DeSilva that she was hospitalized three times with suicidal ideation. A.R. 295. The record does not contain medical records of any psychiatric hospitalization. 5 The ALJ noted that, at the hearing, Wright testified she was employed part-time caring for special needs children. A.R. 21, 594-96. 6 The state agency physician similarly found that Wright did not have a severe impairment. A.R. 345. 9 1 testing also indicated Wright was exaggerating symptoms, yet DeSilva did not 2 explain why her conclusions were nevertheless valid. A.R. 16. In June 2004, 3 DeSilva stated she considered it important to conduct psychological tests [d]ue 4 to the extent of the subject s reported level of distress and to gather further 5 information about the current level of functioning. A.R. 297. On the MMPI-2, 6 DeSilva noted a significantly elevated Fb scale and stated that the content scales 7 in the latter half of the test are not considered valid for clinical use. Id. There 8 may be some over reporting of symptomotology (sic) but the results are 9 considered clinically useful. Id. On the MCMI-III, the results indicated a broad 10 tendency to magnify the level of experienced illness or a characterological 11 inclination to complain of be self-pitying. A.R. 298. Caution in interpretation is 12 advised. Id. The June 2004 report does not explain DeSilva s consideration of 13 Wright s exaggeration. 14 In November 2004, on the MMPI-2, DeSilva reports that [t]he profile 15 needs to be interpreted cautiously due to some elevation of the F scale. A.R. 16 283. However, DeSilva stated that Wright s profile is valid and interpretable. Id. 17 On the MCMI-3, DeSilva reported that [t]he patient s response style may indicate 18 a broad tendency to magnify the level of experienced illness or a characterlogical 19 (sic) inclination to complain or be self-pitying. On the other hand, the responses 20 may convey feelings of extreme vulnerability. The interpretation is undertaken 21 cautiously. Id. 22 The ALJ is correct that DeSilva does not explain her consideration and 23 interpretation of Wright s tendency to exaggerate. The [ALJ] is required to give 24 weight not only to the treating physician s clinical findings and interpretation of 25 test results, but also to [her] subjective judgments. Lester, 81 F.3d at 832-33. 26 The ALJ could, however, discount DeSilva s opinion based on her failure to 27 explain her conclusions in light of the indications of exaggeration as compared to 28 the more complete and reasoned report from Rubenstein. 10 The ALJ concluded that repeatedly demonstrating exaggeration on 1 2 multiple, but different, personality inventories leads to only one reasonable 3 conclusion, that the claimant s psychiatric allegations cannot be relied upon. 4 A.R. 15. The ALJ also found that Wright s [i]nconsistent statements and actions 5 also undermine her general credibility, both in the psychological and physical 6 contexts. A.R. 20. The ALJ s findings are supported by substantial evidence. A.R. 16. 7 8 Indeed, the differing assessments of Rubenstein and DeSilva may result from the 9 different allegations made by Wright to each physician. For example, whereas 10 DeSilva reports Wright as saying she was terminated twice from group home jobs 11 and was told she was not doing her duties up to the required standards (A.R. 12 295), Rubenstein reports Wright as saying she quit her first group home job 13 because she was not making enough money, she found another group home job 14 that gave her supervisorial duties and more money, and was wrongfully 15 terminated from that second job after two years because she reported an incident 16 to a licensing board. A.R. 312, 317-18, 324. As the ALJ noted, Wright s primary 17 physician, Dr. Doty, states in 2004 that Wright is being taken off work at this 18 time due to knee problems.7 A.R. 18, 445. 19 As another example, whereas DeSilva reports Wright as saying that she 20 does not go to any outing, movies, or sporting events, and does not see any 21 friends (A.R. 282, 297), Rubenstein reports Wright as saying that she has above 22 average intelligence, is learning computers, and likes to cook, sew, paint and 23 work with furniture. A.R. 314-15. Wright went to three jazz festivals in 2004 with 24 family, sees her family on holidays and for parties, flew to Las Vegas with a friend 25 the month before her evaluation, went to New York with the same friend a year 26 earlier, and attends social events. A.R. 315-16. 27 28 7 Wright told Dr. Jackson, an orthopedic surgeon, that she went off work in May 2004 due to problems with her right knee. A.R. 227. 11 1 (2) Dr. DeEspinosa s Opinion 2 Wright also contends that the ALJ did not give appropriate consideration 3 to the opinion of Dr. DeEspinosa. DeEspinosa appears only once in the record, 4 having prepared a two-page Work Capacity Evaluation (Mental) checklist dated 5 July 5, 2006. A.R. 497-98. There is no indication in the record of DeEspinosa s 6 professional relationship to Wright. As the ALJ noted, Dr. Soor-Melka, not 7 DeEspinosa, appeared to be Wright s treating physician at the time. A.R. 15. 8 The checklist consists of 19 line items representing various personal 9 abilities, most with boxes to be marked in a range from None to Extreme or 10 Unknown. Dr. DeEspinosa checked the Moderate, Marked, or Extreme 11 boxes, indicating limited ability to carry out each line item s function. However, 12 there is no narrative supporting any of the choices and no citation to any type of 13 examination or objective clinical study. As the ALJ noted, In addition, [Dr. 14 DeEspinosa] provides no explanation regarding how her conclusions were 15 reached. She merely checked boxes on a checkbox form. A.R. 15. The form is 16 wholly conclusory. Even a treating physician s conclusory, check-the-box opinion 17 may be properly discounted. Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 18 1190, 1195 (9th Cir. 2004) (ALJ properly rejected treating physician s conclusory 19 check-list report); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ may 20 reject check-off reports that did not contain explanations for conclusions). The 21 ALJ s reasons for discounting DeEspinosa s opinion are supported by substantial 22 evidence. 23 E. 24 Wright contends that if the ALJ found DeEspinosa s check-the-box form 25 Development of the Record conclusory, the ALJ had a duty to develop the record further. 26 It is the claimant s duty to prove he is disabled. Mayes v. Massanari, 27 276 F.3d 453, 459 (9th Cir. 2001). See 42 U.S.C. § 423(d)(5)(A) (the claimant 28 must furnish medical and other evidence of her disability); 20 C.F.R. § 12 1 404.1512(c) ( You must provide medical evidence showing that you have 2 impairment(s) and how severe it is during the time you say you are disabled. ). 3 The ALJ . . . has an independent duty to fully and fairly develop the record 4 and to assure that the claimant s interests are considered. Tonapetyan v. Halter, 5 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and internal quotation marks 6 omitted). An ALJ s duty to develop the record further is triggered only when 7 there is ambiguous evidence or when the record is inadequate to allow for proper 8 evaluation of the evidence. Mayes, 276 F.3d at 459-60. 9 Here, the record contains Wright s psychological treatment records. None 10 bear the name of DeEspinosa. The ALJ found that DeEspinosa s report was 11 conclusory and unsupported, not ambiguous or inadequate to allow for a proper 12 evaluation. Nor did any physician render an opinion that the record was 13 ambiguous or inadequate. Cf. Tonapetyan, 242 F.3d at 1150 (duty to develop 14 record existed when ALJ relied on physician who expressed that more medical 15 evidence was needed to state a diagnostic opinion). Based on the record, the 16 ALJ had no duty to develop the record further. See Mayes, 276 F.3d at 459-60. 17 18 F. Plaintiff s Remaining Issues Wright also contends that the ALJ (1) improperly determined her residual 19 functional capacity; and (2) posed an incomplete hypothetical question to the 20 vocational expert. Each issue relates exclusively to the ALJ s rejection of the 21 opinions of DeSilva and DeEspinosa. J.S. 19-20. In light of the Court s finding 22 that the ALJ s rejection of the two opinions was supported by substantial 23 evidence, the ALJ did not err in his residual functional capacity determination or 24 in posing a hypothetical to the vocational expert. 25 26 27 28 13 1 IV. 2 ORDER 3 4 5 6 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 7 8 9 DATED: August 31, 2009 ALICIA G. ROSENBERG United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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