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Walter v. Berryhill

United States District Court, D. South Dakota, Southern Division

August 8, 2018

ANDREW REID WALTER, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff, Andrew Reid Walter, seeks judicial review of the Commissioner's final decision denying his application for social security disability benefits under Title II of the Social Security Act.[2] Mr. Walter has filed a complaint and has requested the court to reverse the Commissioner's final decision denying him disability benefits and to enter an order awarding benefits. Alternatively, Mr. Walter requests the court remand the matter to the Social Security Administration for further proceedings.

         This appeal of the Commissioner's final decision denying benefits is properly before the district court pursuant to 42 U.S.C. § 405(g). This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b) and the February 27, 2018, order of the Honorable Karen E. Schreier, district judge.

         FACTS[3]

         A. Statement of the Case

         This matter arises from Mr. Walter's application for SSD benefits filed on April 8, 2016, alleging disability commencing on November 1, 2009. AR169. Following denial of his claim, initially and upon reconsideration, Mr. Walter requested a hearing which was held on March 22, 2017, before Administrative Law Judge (“ALJ”) Michael Balter. AR104, 126. In the decision, ALJ Balter confirmed Mr. Walter was insured for benefits through December 31, 2014. AR15.

         In the unfavorable decision dated April 3, 2017, the ALJ denied Mr. Walter's claim, finding that he suffers from “right knee chondromalacia and meniscal tear, status post arthroscopic surgery; chronic fatigue syndrome, residuals of traumatic brain injury (“TBI”); post-traumatic stress disorder; and depression, ” which are severe impairments. AR10-27. The ALJ concluded that Mr. Walter cannot perform his past relevant work as a computer support specialist but retains the residual functional capacity (“RFC”) to perform other jobs, i.e., electronics worker and assembler, small products. AR25-26. Thus, the ALJ rejected Mr. Walter's assertions and severity of his symptoms associated with his post-traumatic stress disorder (PTSD) and depression in that he is preoccupied by intrusive thoughts and rumination, memory loss, poor concentration, irritability, and other symptoms that prevent him from working. AR13-27.

         In reaching his conclusions, the ALJ relied on vocational expert testimony and rejected the contrary opinion of Dr. Samuel Bradshaw's compensation and pension examination. AR392-96. Instead, he gave “significant weight” to the opinion of the State agency consultants' physical and mental assessments. AR24.

         Mr. Walter requested review of the hearing decision on April 3, 2017, which was denied by the Appeals Council on June 27, 2017. AR1. Accordingly, the ALJ's decision became the Commissioner's final decision.

         B. Plaintiff's Age, Education and Work Experience

         Mr. Walter was born on April 11, 1966. AR169. Mr. Walters is a college graduate and a war veteran having served in Desert Storm/Desert Shield, Enduring Freedom and Iraqi Freedom. AR547, 549. In his medical records, Mr. Walter described many traumatic events that occurred during his military service. AR393. Dr. Bradshaw felt these traumatic events were “significant.” AR394. Prior to these events, Mr. Walter functioned at a high level. AR396. Mr. Walter received an honorable discharge with the rank of Major from the United States Army following 24 years of service. AR547. In 2009, Mr. Walter retired from the military but “felt that he would have been Boarded out if had not.” AR394. He was having “night horror dreams” and missing at work and was told by his superior that he had to do something. AR406, 408. Mr. Walter has never abused substances. AR394. Mr. Walter's past relevant work was in information systems management for the United States Army. AR547.

         C. Relevant Medical Evidence

         During a compensation and pension examination completed by psychiatrist Dr. Samuel Bradshaw on January 11, 2010, Mr. Walter indicated that at one time he had many friends but is now down to just one and that was his wife. AR394. Mr. Walter indicated he had difficulty going into crowds, had very labile feelings where he would cry one minute and then recover, was hyperirritable, easily startled, and had problems with getting to sleep. AR394. In addition, Mr. Walter complained he was sad constantly, had little energy, poor concentration, and did not have fun. AR394. Dr. Bradshaw stated Mr. Walter had no remissions in the last several years and that these symptoms had gone on for the last three years. AR394. Mr. Walter was somewhat anxious during the exam. He was tearful, sad, and struggled with concentration at times. AR395. Mr. Walter indicated sleep impairment finding some relief with medications. AR395. Dr. Bradshaw indicated Mr. Walter met the Diagnostic and Statistical Manual for Mental Disorder - IV criteria in that he had recurrent re-experiencing, had few friends, stayed away from crowds, was hyperirritable, and rather upset most of the time. AR395. Dr. Bradshaw diagnosed Mr. Walter with severe post-traumatic stress syndrome (PTSD) secondary to combat stressors, depressive disorder secondary to PTSD, and chronic fatigue. AR395. Dr. Bradshaw assigned a global assessment of function score (GAF) of 45. AR395.

         Dr. Bradshaw opined Mr. Walter had total occupational impairment as he was unable to concentrate, unable to focus, had repeated symptoms that kept him from completing any duties, had marked social impairment, and his only social relationship was his recently married wife, and “they are already having some difficulties.” AR396.

         On January 27, 2010, Mr. Walter reported his most troubling symptom was intrusive thoughts. AR433. During the mental status exam his concentration was fair. AR434.

         On February 22, 2010, Dr. Hoerner concluded that the findings of the exam were consistent with a diagnosis of traumatic brain injury (TBI), “although the current clinical symptom presentation was most consistent with the effects of behavioral health conditions (e.g., PTSD, depression, etc.)” AR369, 547-48.

         During the TBI consult on February 22, 2010, Mr. Walter rated the following neurobehavioral symptoms as very severe: his concentration, difficulty making decisions, difficulty getting organized and ability to finish things, fatigue, difficulty falling or staying asleep, feeling anxious, depressed, irritability, and poor frustration tolerance. AR367. Mr. Walter rated his forgetfulness as severe. AR367. Mr. Walter conveyed that these symptoms among others extremely interfered with his social interactions. Id.

         Mr. Walter underwent a detailed neuropsychological examination on March 11, 2010, secondary to complaints of worsening psychiatric symptoms, episodes of forgetfulness, poor concentration, fatigability, sleep disturbance, chronic pain, and headaches. AR546. During neuropsychological assessment Mr. Walter reported the onset of his psychiatric symptoms occurred following transition from the Persian Gulf in 1991. AR548-49. The test indicated “a mild level of cognitive dysfunction characterized by impaired executive skills.” AR545. At the time of assessment Mr. Walter endorsed the following symptoms: recurrent nightmares; insomnia; feelings of guilt; avoidance behaviors; emotional lability; heightened irritability; hypervigilance; depressed mood; poor energy; and appetite reduction with 25-pound weight loss. AR549. The physician observed Mr. Walter's thought processes were mildly circumstantial, but he could be redirected. AR549. During the neuropsychological testing Mr. Walter had difficulty concentrating and required frequent redirection. AR550. Mr. Walter exhibited mild cognitive defects in executive function. AR552. His psychomotor processing speed was borderline impaired and was in the borderline impaired range of mental flexibility and visual scanning. AR552. Mr. Walter has moderately impaired in retention of information. AR552. Mr. Walter's occupational and social functioning would be mitigated by his psychiatric status. AR553.

         On March 18, 2010, Dr. Silverman diagnosed Mr. Walter with PTSD, depressive disorder and likely traumatic brain injury. AR485. Mr. Walter reported to Dr. Silverman that his concentration and memory problems were significant. AR485. Mr. Walter missed his appointment a day earlier and went to an appointment that was scheduled for a different day. AR485. Mr. Walter reported his wife handled his medications, he avoided leaving the house, and often did not want to get out of bed in the morning, and that he got tearful easily and often. AR485. Dr. Silverman noted Mr. Walter's mood was “up and down” and affect was anxious, and tearful on one occasion. AR485.

         On March 24, 2010, an MRI scan of Mr. Walter's brain was interpreted as abnormal with “mild periventricular hyperintensity and multiple scattered T2/FLAIR bright signals in bilateral frontal and parietal lobe subcortical and deep white matter.” AR548. The pattern was “nonspecific” and “could represent posttraumatic change or early microvascular ischemic change.” AR548.

         Mr. Walter reported having three good days during an April 5, 2010, TBI screening follow-up with Dr. Hoerner. AR540. His wife felt he was spending too much time in the house and he reported that going out and interacting with the public was difficult because of his irritability. AR540.

         On April 29, 2010, he presented for a follow up of PTSD with Dr. Santos. AR494. During the exam he reported his thoughts as being “scrambled.” AR496. During a physical on May 3, 2010, Mr. Walter presented as tangential and loquacious. AR427. His mood was elevated and he was grandiose in demeanor. AR427. Mr. Walter was hypomanic. AR428.

         On May 18, 2010, Dr. Silverman noted Mr. Walter reported feeling terrible, that his wife was frustrated with his memory problems and didn't like being around him. AR482. During the exam Dr. Silverman noted Mr. Walter's speech sometimes increased in volume and his mood was terrible. Mr. Walter was frustrated and tearful.

         Dr. Silverman noted on August 25, 2010, that Mr. Walter reported mood cycles where he would feel good for 3 to 4 days and then felt bad, that his anger control was very bad, he had high anxiety and that his sleep was ok with Trazodone except that he usually woke up in 3-4 hours. AR480. Mr. Walter's speech sometimes increased in volume, his motor activity was restless, his mood was terrible, he was frustrated and tearful and his thoughts were mildly tangential. AR480.

         During a compensation and pension examination on October 21, 2010, Mr. Walter admitted to “violent” mood swings. AR386. Mr. Walter's medical history indicated difficulty staying and falling asleep, sleeping 15 hours a day at times, decreased attention, difficulty concentrating, difficulty with executive functions (speed of information processing, goal setting, planning, organizing, prioritizing, etc.), moderate memory impairment and irritability, and restlessness which interfered with relationships. AR386. His psychiatric manifestations included flight of ideas, loquaciousness and narcissism. AR388.

         On November 23, 2010, Mr. Walter had a psychiatry consult with Dr. Santos. AR406. In response to questions regarding psychological or emotional problems in the past 30 days, Mr. Walter stated he experienced serious depression, anxiety or tension, and trouble understanding, concentrating or remembering. AR407. When asked to spell WORLD backward, he did it “by repeated the spelling again and again world D, world L, world R.” AR409. Mr. Walter could only remember one of three words. AR409. Mr. Walter remembered RED but did not remember APPLE. AR410. When Mr. Walter was given instructions, he wrote himself notes because he would not remember otherwise. AR410. Mr. Walter indicated he had short term memory problems due to intrusive thoughts. AR411. For PTSD, Mr. Walter endorsed a score of 72 and for depression Mr. Walter scored 19. AR409. Mr. Walter's diagnosis was PTSD and mood disorder, depressed and he was given (GAF) of 50-55. AR409. Dr. Santos found it “difficult to figured (sic) this gentleman getting to rank of Major.” AR410.

         On December 17, 2010, Mr. Walter stated he liked spending time in his favorite place, his garage. AR534. He reported he wrote things down and tried to do things, but his wife got irritated. AR534. He reported irritability was a big issue for him. AR534. Mr. Walter only remembered 2 of 5 words. AR534. Dr. Santos felt Mr. Walter was in a plateau. AR536. Mr. Walter reported he mostly woke up two times on average and went back to sleep, but the Trazodone helped. AR536.

         On February 22, 2011, Mr. Walter reported his family life was affected by his “lack of emotions.” AR532. Mr. Walter only remembered 2 of 5 words. AR533. His mood was consistent with his mental disorder. AR533. Mr. Walter reported that he usually woke up two times and went back to sleep as the Trazodone helped. AR533.

         On April 26, 2011, Mr. Walter reported some days were better and some were not. AR529. Mr. Walter reported it took him about 25 minutes to one hour to go to sleep. AR529. Mr. Walter only remembered 2 of 5 words. AR530.

         On October 6, 2011, Mr. Walter reported some days were better and some were not. AR526. Mr. Walter only remembered 2 of 5 words. AR526.

         On December 20, 2011, Mr. Walter voiced concerns regarding organization and that he struggled and needed to work harder. AR523. Mr. Walter reported he spent a lot of time in his house and fixed his motorcycle and tried to keep his mind occupied. AR523. Mr. Walter only remembered 2 of 5 words. AR524. Mr. Walter's mood was consistent with his mental disorder. AR524.

         On March 20, 2012, Mr. Walter reported he had messed up big time because he overspent twice. AR520. He was in anger management with Dr. Offenbach. AR520. During the exam he appeared distressed. AR522.

         During follow up for PTSD with Dr. Santos on June 26, 2012, Mr. Walter reported he “takes it one day at a time” and must keep organized because of his cognitive problems. AR518. Mr. Walter only remembered 2 of 5 words. AR518.

         During a follow up appointment on October 9, 2012, Mr. Walter indicated the Quetiapine[4] made him feel like staying in bed all day. AR515. He reported he was still dealing with anger control and that his thoughts tended to race. AR515. During the exam, Mr. Walter was pleasant, but Dr. Santos could tell he was stressed and it was difficult for him to keep this façade. AR516.

         On November 6, 2012, Dr. Santos met with Mr. Walter after he got out from the PTSD support group because the support group was very important in Mr. Walter's treatment and Dr. Santos' appointment conflicted with the support group schedule. AR512. Mr. Walter reported he was again not sleeping well when he was off the Trazodone. AR512. During the exam, Mr. Walter was sleepy because he was not sleeping as well at night. AR513.

         On December 5, 2012, Mr. Walter reported the Trazodone helped him sleep but the problem was that he felt tired during the first portion of the day. AR509. He was sleepy during the exam. AR510.

         During a follow up for PTSD on March 12, 2013, Mr. Walter reported having bad gory dreams. AR506. He reported he only takes the Quetiapine if the nightmares did not permit him to go back to sleep and he needed to rest. AR506. He reported the nightmares were at their least intensity. AR506.

         On June 9, 2013, Mr. Walter presented for a follow up of PTSD with Dr. Santos. AR503. Mr. Walter reported he was having bad gory dreams but not the nightmares. AR503. During the exam he was sleepy and had not taken care of his personal care because he had not wanted to be late for his appointment. AR504. He was working in group therapy to try and improve his appearance and get out more. AR505. Mr. Walter wrote everything down as a way of reminding himself of things. AR505.

         On October 29, 2013, he reported that he realized he needed to spend more time outside his house and that his oldest son must push him out the door to go do something. AR500. He reported that coming to see Dr. Santos helped with his intrusive thoughts. AR500. He presented with a scruffy appearance and was working in group therapy to try and improve his appearance. AR501-02. Mr. Walter did not write things as he did not bring a notebook but when reminded by Dr. Santos, he wrote some on his med sheet. AR502.

         As late as January 17, 2014, Mr. Walter reported that he spent most of his time in his basement and avoided going out on his own because he did not trust anyone. AR475. Mr. Walter reported his main problem was still anger. AR475.

         On February 3, 2014, Mr. Walter came to his appointment with a sheet of paper with several issues to address. AR488. Mr. Walter noted ongoing issues with PTSD and admitted to being “all over the place today.” AR488.

         During another follow up on March 12, 2014, he presented as obviously depressed and voiced some sense of worthlessness. AR497. His appearance was scruffy. AR498.

         On October 31, 2014, he presented for follow up of PTSD with Dr. Santos. AR491. Mr. Walter was taking his meds as his son wrote them on the caps. AR492. Mr. Walter's hair was long, curly and wild in appearance. AR493. He reported his thoughts as “scrambled.” AR493.

         On March 15, 2016, during group session Mr. Walter reported noticing rumination when he is in bed, while driving, and while sitting on the couch and he tried to listen to the radio or keep his mind busy to distract himself. AR646.

         On March 22, 2016, Mr. Walter completed the BDI-II which measures current symptoms of depression. AR628. His score was 34 indicating a severe level of depression. AR633. He reported he had noticed more traumatic memories than rumination in the last week. AR644.

         On March 31, 2016, during an appointment with Dr. Santos, Mr. Walter had a wild appearance with hair messed and he wore a long coat and gloves as he felt it was cold outside. AR635.

         On April 19, 2016, Mr. Walter completed the BDI-II which measures current symptoms of depression. AR628. His score was 35 indicating a severe level of depression. AR628. Mr. Walter reported he was still struggling with rumination. AR628.

         On August 23, 2016, Mr. Walter saw Dr. Santos. AR607. Mr. Walter reported he was sleeping with his medications but felt he was sleeping more than he should. AR607. His sleep was interrupted by dreams. AR607. He reported he was having intrusive thoughts and tried to sing songs from tv shows to distract himself. AR607. His physical appearance was improved. AR608-09. Mr. Walter reported when he had a bad night with dreams he was more irritable. AR609.

         On June 28, 2017, Mr. Walter saw Dr. Santos and reported he felt he was sleeping more than he should and his sleep was interrupted by dreams. AR613. He reported intrusive thoughts and tried to sing tv songs to distract himself. AR613. He was attending group therapy and when it was announced they would be talking about convoys, it brought memories and “him having to deal the subject a week ahead of the group and wonder how he will handle [it] etc.” AR613-14. Mr. Walter reported feeling down and he took Prazosin when he felt disturbed by nightmares. AR614. He presented with wild appearance and hair that was messed and he wore a long coat and gloves as he said that he felt it was cold outside. AR615.

         D. Evidence Submitted to the Appeals Council

         Evidence submitted to the Appeals Council included an addendum from Dr. Santos dated March 1, 2017. AR9. Dr. Santos is Mr. Walter's treating psychiatrist and has been since 2010. Id. Dr. Santos opined that Mr. Walter's PTSD would make it difficult for Mr. Walter to be functional and “he is seriously limited with difficulties in memory and would have difficulty in working on (sic) proximity with others as he does not respond well to criticism.” Id. Dr. Santos further opined that Mr. Walter would be unable to complete a working day with his impairment and is unable to maintain socially appropriate behaviors. Id. Dr. Santos opined that Mr. Walter's condition is permanent, and that his chronic depression has “magnified” his physical injuries. Id. Finally, Dr. Santos noted that Mr. Walter had been retired from the United States Army since 2009 and “had not worked in years.” Id.

         E. Summary of Testimony

         Mr. Walter testified at the hearing held on March 22, 2017. Mr. Walter's responses to questions posed by the ALJ are often disjointed and rambling. AR40-52.

         In response to the ALJ asking if he had problems concentrating, Mr. Walter answered yes. AR45. Mr. Walter stated that he watches a lot of TV and tries to keep his mind occupied so he does not get any bad thoughts of “war and stuff” in his head and will start to ruminate. AR45.

         The ALJ asked Mr. Walter if medication helped his night terrors. AR46. Mr. Walter answered “it doesn't fix it but it does curb it a little.” AR46-47. When asked about being out in crowds, Mr. Walter replied, “I don't do that” and that he does not go to Walmart. AR46. The ALJ asked if Mr. Walter had any friends and Mr. Walter indicated his son Joe and the doctors at the VA. AR47.

         Mr. Walter said he spends a lot of time in his basement and that he had a motorcycle and that he just “cleans it.” AR47.

         Mr. Walter said he cooked his own meals but couldn't leave the kitchen if the stove was on because his son Joe told him not to. AR48.

         Mr. Walter was planning to get a medical discharge from the military, but a VA veteran's service officer told him to just retire normally. AR50.

         The ALJ questioned the vocational expert (VE) as follows: the ALJ asked the VE to assume a person with Mr. Walter's age, education and work experience. AR55. He further asked the VE to assume such a person was limited to light duty work. Id. The person could lift 20 pounds occasionally, 10 pounds frequently, and would be limited to standing and walking for 4 hours in an 8-hour day but could sit for up to 6 hours in an 8-hour day. Pushing and pulling limitations were the same as lifting and carrying. Id. The person could only occasionally climb ladders, ropes, scaffolds, ramps and stairs. Id. the person could occasionally reach overhead with the left non-dominant upper extremity. Id. The person could understand and remember simple instructions, carry out routine and repetitive tasks, and was limited to simple, work-related decisions. Id. He could tolerate changes within a routine work setting and could occasionally interact with the public, co-workers, and supervisors. AR55. Given this hypothetical, the VE opined such a person could not perform Mr. Walter's past relevant work. Id. The VE opined, however, that such a person that jobs remained within the national economy in the light, unskilled category that such a person could perform. AR56.

         For example, such a person could perform the job of electronics worker, DOT 726.687-010. In the regional economy (Minnesota, North Dakota, South Dakota) there existed between 1, 200 to 1, 500 such positions. Id. In the national economy, there existed approximately 40, 000 such positions. Id.

         Another job that fit the hypothetical was assembler, small products. DOT 706.684-022. Id. This job is also considered light duty, unskilled work. Id. Regionally, the VE estimated there were 600 to 700 positions available, and nationally, upwards of 20, 000 positions available. Id.

         The ALJ's second hypothetical asked the VE to assume the same limitations, except the person was limited to sedentary work, with the same non-exertional limitations. AR57. Assuming these limitations, the ALJ stated such a person could perform the jobs of circuit board screener, DOT 726.684-110. AR 58. For that job, there would be 300-400 regional positions and 12, 000 positions nationally. Id. Such a person could also perform the job of final assembler, DOT 713.687-018. That job would have 250 openings regionally and 9, 000 nationally. Id. Another suitable job would be a lens inserter, DOT 713.687-026. Such a job would have 200 openings regionally, and 8, 000 in the national economy. Id.

         The vocational expert testified that a person who is unable to maintain concentration for a two-hour period would not be able to perform competitive work. AR58. The vocational expert also testified that a person who missed two or more days of work per month would not be able to maintain competitive employment. AR58. In addition, the vocational expert testified that a person limited to no interaction with public, co-workers or supervisors would not be able to perform competitive work. AR59.

         DISCUSSION

         A. Standard of Review

         When reviewing a denial of benefits, the court will uphold the Commissioner's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla, less than a preponderance, and that which a reasonable mind might accept as adequate to support the Commissioner's conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975). “This review is more than a search of the record for evidence supporting the [Commissioner's] findings, and requires a scrutinizing analysis, not merely a rubber stamp of the [Commissioner's] action.” Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered, citations omitted).

         In assessing the substantiality of the evidence, the evidence that detracts from the Commissioner's decision must be considered, along with the evidence supporting it. Minor, 574 F.3d at 627. The Commissioner's decision may not be reversed merely because substantial evidence would have supported an opposite decision. Woolf v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993); Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). If it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, the Commissioner must be affirmed. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record." Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000)(citations omitted).

         The court must also review the decision by the ALJ to determine if an error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); 42 U.S.C. § 405(g). Specifically, a court must evaluate whether the ALJ applied an erroneous legal standard in the disability analysis. Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d 852, 853 (8th Cir. 1998)(citations omitted). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith, 982 F.2d at 311.

         B. The Disability Determination and the Five-Step Procedure

         Social Security law defines disability as the inability to do 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. 42 U.S.C. §' 416(I), 423(d)(1); 20 C.F.R.' 404.1505. The impairment must be severe, making the claimant unable to do his previous work, or any other ...


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