Cowan v. Colvin (previously Astrue), No. 2:2013cv00051 - Document 23 (E.D. Wash. 2013)

Court Description: ORDER Granting (ECF No 14 ) Plaintiff's Motion for Summary Judgment and Remanding for Additional Proceedings. Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 IVY L. COWAN, 9 No. CV-13-0051-JTR Plaintiff, 10 v. 11 12 CAROLYN W. COLVIN, 13 Commissioner of Social Security, 14 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 15 16 17 BEFORE THE COURT are Cross-Motions for Summary Judgment. ECF 18 No. 14, 21. Attorney Dana C. Madsen represents Ivy L. Cowan (Plaintiff); Special 19 Assistant United States Attorney Summer Stinson represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 22 filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 23 Judgment, DENIES Defendant’s Motion for Summary Judgment, and remands the 24 matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 25 405(g). 26 27 28 JURISDICTION Plaintiff protectively filed an application for Supplemental Security Income Benefits on August 11, 2010, alleging disability since August 11, 2010, due to ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 lower back degenerative disk disease. Tr. 167, 181. The application was denied 2 initially and upon reconsideration. Administrative Law Judge (ALJ) R.J. Payne 3 held a hearing on October 3, 2011, Tr. 44-100, and issued an unfavorable decision 4 on October 14, 2011, Tr. 23-33. The Appeals Council denied review on December 5 4, 2012. Tr. 1-6. The ALJ’s October 2011 decision became the final decision of 6 the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 7 405(g). Plaintiff filed this action for judicial review on January 31, 2013. ECF 8 No. 1, 5. 9 STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was born on November 4, 1966, and was 43 years old on the 14 alleged onset date, August 11, 2010. Tr. 167. She completed high school and also 15 has about one year of training in basic computer skills from the Adult Education 16 Center. Tr. 67-68. Plaintiff indicated she last worked from September 2005 to 17 April 2006 doing paint touch up at a sheet metal fabrication company. Tr. 68-69. 18 That job reportedly ended as a result of her being laid off. Tr. 68, 70. Plaintiff 19 indicated in her “Disability Report” that she stopped working at that time because 20 she was “a full time housewife.” Tr. 181. 21 Plaintiff testified at the administrative hearing that she hurt her back in 2003 22 while working at a daycare and is currently unable to work due to back pain and 23 numbness in her legs. Tr. 71, 78. Plaintiff further stated she has difficulty with 24 sleep at night due to back pain, Tr. 77-78, and has constant headaches, Tr. 87. She 25 also reported mental impairments of depression, anxiety and severe anger. Tr. 91. 26 Plaintiff testified that while she has tried marijuana in the past for her migraines 27 and obtained a medical marijuana card at one point, she did not use marijuana on a 28 regular basis. Tr. 94. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 Margaret Moore, Ph.D., testified as a medical expert at the hearing held on 2 October 3, 2011. Tr. 54-65. Dr. Moore noted Plaintiff did not have a history of 3 mental health treatment1 and indicated the record reflected the cluster of diagnoses 4 related to depression, anxiety, personality disorder and substance abuse. Tr. 58. 5 She testified the record reflected fairly regular marijuana use and a history of other 6 kinds of substance abuse and indicated that was “part of that same cluster of folks 7 who instead of developing coping skills, they move towards drugs or alcohol or 8 both to help them through the rough times.” Tr. 61. Dr. Moore stated that “by and 9 large, I see someone who is dysthymic and dependent and kind of stuck in that 10 role.” Tr. 61. She opined that Plaintiff’s mental health impairments were not 11 severe enough to meet or equal a listings impairment.2 Tr. 61-62. She testified 12 that Plaintiff had no limitations on activities of daily living and was mildly to 13 moderately limited in maintaining social functioning and maintaining 14 concentration, persistence and pace. Tr. 63. 15 With respect to other medical professionals of record, Dr. Moore referred to 16 Dr. Jackline’s consultative exam as “rather unusual” and criticized Dr. Jackline for 17 endorsing virtually every symptom proposed to him by Plaintiff. Tr. 60, 62. With 18 regard to the reports of Drs. Dalley and Greene, Dr. Moore indicated she found the 19 narrative sections of those evaluations were more helpful in formulating an 20 understanding of Plaintiff’s condition than the boxes checked on those reports. Tr. 21 65. 22 /// 23 24 1 However, at the time of the hearing, Plaintiff had received mental health 25 treatment and counseling at the CHAS Clinic in Spokane, Washington. Tr. 55, 26 345-361. 27 28 2 Plaintiff’s counsel stipulated at the administrative hearing that no listing had been met or equaled in this case. Tr. 99. ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 ADMINISTRATIVE DECISION 2 The ALJ found that Plaintiff had not engaged in substantial gainful activity 3 since August 11, 2010, the application date. Tr. 25. The ALJ determined, at step 4 two, that Plaintiff had the following severe impairments: low back pain, 5 degenerative disc disease, depression, posttraumatic stress disorder, borderline 6 personality disorder, and anxiety. Tr. 25. At step three, the ALJ found Plaintiff’s 7 severe impairments did not meet or medically equal a listed impairment. Tr. 25. 8 The ALJ assessed Plaintiff’s RFC and determined she could perform light exertion 9 level work with the following limitations: she could occasionally climb ladders, 10 ropes and scaffolds; could occasionally stoop and crouch; and would have 11 occasional but not frequent difficulty maintaining attention and concentration for 12 extended periods of time, getting along with coworkers or peers without distracting 13 them or exhibiting behavioral extremes, responding appropriately to changes in the 14 work setting, and establishing realistic goals or making plans independently of 15 others. Tr. 28. 16 At step four, the ALJ concluded Plaintiff was able to perform her past 17 relevant work as a Powder Coat Worker. Tr. 32. Alternatively, at step five, the 18 ALJ found that, considering Plaintiff’s age, education, work experience and RFC, 19 Plaintiff was able to perform work existing in significant numbers in the national 20 economy. Tr. 32-33. The ALJ thus determined that Plaintiff was not under a 21 disability within the meaning of the Social Security Act at any time from August 22 11, 2010, the application date, through the date of the ALJ’s decision, October 14, 23 2011. Tr. 29. 24 25 26 27 28 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the Court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 decision of the Commissioner may be reversed only if it is not supported by 2 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 3 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a 4 mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 5 substantial evidence is such relevant evidence as a reasonable mind might accept 6 as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 7 (1971). If the evidence is susceptible to more than one rational interpretation, the 8 Court may not substitute its judgment for that of the Commissioner. Tackett, 180 9 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 10 (9th Cir. 1999). 11 The ALJ is responsible for determining credibility, resolving conflicts in 12 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 13 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 14 although deference is owed to a reasonable construction of the applicable statutes. 15 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 16 It is the role of the trier of fact, not this Court, to resolve conflicts in 17 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 18 rational interpretation, the Court may not substitute its judgment for that of the 19 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 20 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 21 still be set aside if the proper legal standards were not applied in weighing the 22 evidence and making the decision. Brawner v. Secretary of Health and Human 23 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 24 support the administrative findings, or if conflicting evidence exists that will 25 support a finding of either disability or non-disability, the Commissioner’s 26 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 27 Cir. 1987). 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 SEQUENTIAL EVALUATION PROCESS 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 4 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 5 through four, the burden of proof rests upon the claimant to establish a prima facie 6 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 7 burden is met once a claimant establishes that a physical or mental impairment 8 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 9 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 10 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 11 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 12 in the national economy which claimant can perform. Batson v. Commissioner of 13 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 14 an adjustment to other work in the national economy, a finding of “disabled” is 15 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 16 ISSUES 17 The question presented is whether substantial evidence exists to support the 18 ALJ’s decision denying benefits and, if so, whether that decision is based on 19 proper legal standards. 20 Plaintiff contends the ALJ erred because she is more limited from a 21 psychological standpoint than what was determined by the ALJ. ECF No. 14 at 6. 22 With respect to her psychological limitations, Plaintiff specifically argues the ALJ 23 failed to properly consider the opinions of examining medical professionals and 24 instead relied only on the testimony of non-examining, non-treating medical 25 professionals. ECF No. 14 at 6-11. Plaintiff further asserts the ALJ erred at step 26 four of the sequential evaluation process by failing to call a vocational expert to 27 discuss her non-exertional impairments. ECF No. 14 at 11. 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 2 3 DISCUSSION A. Medical Evidence Plaintiff argues the ALJ erred by giving significant weight to the opinions of 4 non-examining, non-treating medical professionals and failing to accord proper 5 weight to the opinions of examining medical professionals regarding Plaintiff’s 6 mental condition. ECF No. 14 at 6-11. 7 In disability proceedings, an examining physician’s opinion is given more 8 weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 9 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If the 10 examining physician’s opinions are not contradicted, they can be rejected only 11 with clear and convincing reasons. Lester, 81 F.3d at 830. If contradicted, the 12 opinion can only be rejected for “specific” and “legitimate” reasons that are 13 supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 14 1043 (9th Cir. 1995). However, the Ninth Circuit has held that “[t]he opinion of a 15 nonexamining physician cannot by itself constitute substantial evidence that 16 justifies the rejection of the opinion of either an examining physician or a treating 17 physician.” Lester, 81 F.3d at 830. An ALJ’s decision to reject the opinion of a 18 treating or examining physician may be based in part on the testimony of a non- 19 examining medical advisor, but the ALJ must also have other evidence to support 20 the decision such as laboratory test results, contrary reports from examining or 21 treating physicians, or testimony from the claimant that was inconsistent with the 22 physician’s opinion. See Andrews, 53 F.3d at 1042-1043. 23 On August 5, 2010, Plaintiff was first examined by William Greene, Ph.D. 24 Tr. 239-251. It was noted that Plaintiff reported no history of psychiatric 25 hospitalizations and no history of counseling. Tr. 239. Dr. Greene marked on a 26 check-box form that Plaintiff was severely limited in her ability to exercise 27 judgment and make decisions and was markedly limited in her abilities to relate 28 appropriately to co-workers and supervisors and to maintain appropriate behavior ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 in a work setting. Tr. 242-243. He wrote that Plaintiff’s personal life is in such 2 turmoil at the present time (her grandson had recently died, her son was being 3 accused of the death through abuse and shaken baby syndrome, and she was 4 currently in the process of divorce from her third husband) that counseling was 5 recommended to help her focus and make more structured plans for her future. Tr. 6 239, 243. “Whether it would improve her ability to work would depend on 7 [Plaintiff’s] desire to turn her life around.” Tr. 243. Dr. Greene opined that her 8 impairments were expected to last a maximum of six months,3 and he expected 9 Plaintiff would be able to return to work when her symptoms resolved. Tr. 244- 10 11 245. On December 15, 2010, William H. Jackline, Ed.D., NCSP, examined 12 Plaintiff. Tr. 268-275. He determined that Plaintiff’s ability to understand, 13 remember and follow simple directions was adequate; ability to understand, 14 remember and follow increasingly lengthy, fast-paced and complex verbal 15 information and directions was mildly to moderately impaired; abstract verbal 16 reasoning skills were moderately impaired; ability to sustain her concentration and 17 persist at a task was mildly to moderately impaired; social interactive skills were 18 moderately impaired; and ability to independently and quickly adapt to changes 19 within her environment was moderately impaired. Tr. 274. Dr. Jackline opined 20 that Plaintiff’s prognosis for improving her current levels of psychological and 21 social functioning appeared to be poor. Tr. 274. 22 On December 16, 2010, state agency medical professional Dan Donahue, 23 Ph.D., reviewed the record and filled out a mental residual functional capacity 24 assessment form and psychiatric review technique form. Tr. 276-293. Dr. 25 Donahue found no marked limitations, but noted moderate limitations in Plaintiff’s 26 27 28 3 Dr. Greene’s assessed mental limitations would thus not meet the duration requirements of the Act (one year). 42 U.S.C. § 1382c(a)(3)(A). ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 abilities to understand and remember detailed instructions, carry out detailed 2 instructions, maintain attention and concentration for extended periods, complete a 3 normal workday and workweek without interruptions from psychologically based 4 symptoms and to perform at a consistent pace without an unreasonable number and 5 length of rest periods, interact appropriately with the general public, and respond 6 appropriately to changes in the work setting. Tr. 276-277. With respect to 7 functional limitations, Dr. Donahue determined Plaintiff had mild restrictions of 8 activities of daily living, moderate difficulties in maintain social functioning, 9 moderate difficulties in maintaining concentration, persistence and pace, and one 10 or two episodes of decompensation. Tr. 290. He opined that Plaintiff had an 11 adequate ability in the areas of understanding and memory for simple types of 12 work, her ability to sustain concentration, persistence and pace was adequate for 13 simple, basic types of work related tasks, and, although she did have some 14 difficulty in social areas, those social difficulties would not preclude successful 15 work at a basic level. Tr. 278. State agency medical professional Sharon 16 Underwood, Ph.D., reviewed the record on February 16, 2011, and affirmed Dr. 17 Donahue’s conclusions. Tr. 303. 18 Dr. Greene examined Plaintiff a second time on March 9, 2011. Tr. 305- 19 316. Dr. Greene noted several moderate and marked functional limitations, Tr. 20 307-308, but again indicated Plaintiff’s impairments were only expected to last a 21 maximum of six months, Tr. 308. He opined that counseling, medication and some 22 classes for homemakers returning to the workforce would be helpful and that 23 Plaintiff should be able to return to work when her symptoms resolved. Tr. 308- 24 309. Dr. Greene recommended Plaintiff apply for work at Goodwill Industries. 25 Tr. 308-309. 26 On August 23, 2011, Mahlon Dalley, Ph.D., examined Plaintiff. Tr. 318- 27 325. It was noted that Plaintiff reported she smoked marijuana on a nightly basis 28 to reduce pain and help with migraines. Tr. 320, 323. Dr. Dalley noted several ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 moderate and marked functional limitations and “highly recommended” counseling 2 to deal with her past issues and current anxiety/depression issues. Tr. 321. He 3 opined that Plaintiff’s depressive and PTSD symptoms, features of her personality 4 disorder, and health concerns were likely to interfere with her ability to be 5 successful in a normal employment position and estimated Plaintiff would be work 6 impaired for 12 months. Tr. 322, 325. 7 Dr. Moore, who had never treated or examined Plaintiff, testified as a 8 medical expert at the hearing held on October 3, 2011. Tr. 54-65. Dr. Moore 9 noted Plaintiff did not have a history of mental health treatment, Tr. 58, and opined 10 that Plaintiff had no limitations on activities of daily living and was mildly to 11 moderately limited in maintaining social functioning and maintaining 12 concentration, persistence and pace, Tr. 63. The medical advisor criticized Dr. 13 Jackline’s consultative exam, Tr. 60, 62, and indicated the narrative sections of the 14 reports of Drs. Dalley and Greene were more helpful than the conclusions noted in 15 the check boxes of those reports, Tr. 65. 16 In this case, the ALJ accorded Dr. Moore’s opinion controlling weight. Tr. 17 31. The ALJ indicated that while Plaintiff reported problems getting along with 18 people, Dr. Jackline’s examination revealed that Plaintiff had at least five good 19 friends with whom she watches movies or text messages.4 Tr. 27, 270. With 20 respect to concentration, persistence and pace, the ALJ noted that Dr. Jackline 21 indicated Plaintiff had shown an adequate ability to understand, remember and 22 follow simple instructions. Tr. 27, 274. The ALJ ultimately adopted the testimony 23 of the medical expert and the state agency reviewer opinions to find that Plaintiff 24 25 4 Dr. Jackline’s report actually states that Plaintiff “related that she had at 26 least 5 friends,” but had only one really good friend she would see three or four 27 days a week. Tr. 270, 273. Moreover, Dr. Jackline concluded that Plaintiff’s 28 social interactive skills were moderately impaired. Tr. 274. ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 had only mild to moderate difficulties in social functioning and mild to moderate 2 difficulties in concentration, persistence and pace. Tr. 26-27. This level of 3 concentration, persistence and pace and social functioning is apparently reflected 4 in the ALJ’s RFC assessment which determined that Plaintiff would have only 5 occasional difficulty in maintaining attention and concentration, getting along with 6 coworkers and peers, responding appropriately to changes in the work setting, and 7 establishing realistic goals or making plans independently. Tr. 28. 8 9 In this case, the ALJ accorded “great weight” to the testimony of the medical expert and the state agency reviewing medical professionals and utilized the 10 opinions of these nonexamining doctors to discount the opinions of examining 11 medical providers Drs. Greene and Dalley. Tr. 31. However, as noted above, 12 “[t]he opinion of a nonexamining physician cannot by itself constitute substantial 13 evidence that justifies the rejection of the opinion of either an examining physician 14 or a treating physician.” Lester, 81 F.3d at 830. The ALJ also failed to 15 specifically identify what aspects of the opinions of Drs. Greene and Dalley are 16 discounted and did not provide proper rationale for limiting the weight given to 17 those doctors. Tr. 31. Consequently, the ALJ’s rejection of the opinions of Drs. 18 Greene and Dalley is not supported by substantial evidence and is legally deficient. 19 Based on the inadequacy of the reasons given by the ALJ for rejecting the opinions 20 of Drs. Greene and Dalley, remand for reconsideration of those opinions is 21 necessary in this case. 22 B. 23 Plaintiff has additionally contested the ALJ’s step four determination in this 24 25 Step Four Determination case. ECF No. 14 at 11. A claimant will be found not disabled when it is determined that she retains 26 the RFC to perform either the actual functional demands and job duties of a 27 particular past relevant job, or the functional demands and job duties of the 28 occupation as generally required by employers throughout the national economy. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 SSR 82-61. “If a claimant shows that he or she cannot return to his or her previous 2 job, the burden of proof shifts to the Secretary to show that the claimant can do 3 other kinds of work.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 4 Therefore, the burden shifts to the ALJ to identify specific jobs existing in 5 substantial numbers in the national economy that a claimant can perform despite 6 her identified limitations only after a claimant has established a prima facie case of 7 disability by demonstrating she cannot return to her former employment. Hoffman 8 v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). 9 As determined above, the ALJ erred in this case by failing to provide proper 10 rationale for rejecting the opinions of examining medical professionals regarding 11 Plaintiff’s psychological limitations. Supra. Accordingly, this matter shall be 12 remanded for additional proceedings. 13 On remand, the ALJ shall reconsider the opinions of Drs. Greene and 14 Dalley. The ALJ shall reassess Plaintiff’s psychological RFC, taking into 15 consideration the opinions of Drs. Greene and Dalley, as well as all other medical 16 evidence of record relevant to Plaintiff’s claim for disability benefits. Prior to a 17 new administrative hearing, Plaintiff shall additionally undergo a new consultative 18 psychological examination. At the new administrative hearing, the ALJ shall elicit 19 the testimony of a medical expert to assist the ALJ in formulating a new 20 psychological RFC determination, and the new RFC assessment shall be presented 21 to a vocational expert to determine if Plaintiff is capable of performing her past 22 relevant work or any other work existing in sufficient numbers in the national 23 economy. 24 25 CONCLUSION The Court has the discretion to remand the case for additional evidence and 26 finding or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 27 1996). The Court may award benefits if the record is fully developed and further 28 administrative proceedings would serve no useful purpose. Id. Remand is ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 appropriate when additional administrative proceedings could remedy defects. 2 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, further 3 development is necessary to remedy defects and for a proper determination to be 4 made. Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 6 GRANTED, and the matter is REMANDED to the Commissioner for additional 7 proceedings consistent with this Order. 8 9 2. Defendant’s Motion for Summary Judgment, ECF No. 21, is DENIED. 10 3. Application for attorney fees may be filed by separate motion. 11 The District Court Executive is directed to file this Order and provide a copy 12 to counsel for Plaintiff and Defendant. Judgment shall be entered in favor of 13 Plaintiff, and the file shall be CLOSED. 14 DATED December 3, 2013. 15 16 17 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 13

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