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Tipler v. Berryhill

United States District Court, N.D. Texas, Dallas Division

May 3, 2019

DAVID TIPLER, Plaintiff,

         Referred to U.S. Magistrate Judge[1]



         David Tipler (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying his claim for a period of disability and disability insurance benefits (DIB) under Title II of the Social Security Act. (See docs. 1; 14.) Based on the relevant filings, evidence, and applicable law, the Commissioner's decision should be REVERSED IN PART, and the case should be REMANDED for further proceedings.

         I. BACKGROUND[2]

         On March 5, 2015, Plaintiff filed his application for a period of disability and DIB, alleging disability beginning on May 27, 2014. (doc. 11-1 at 155-58.) His claim was denied initially on May 13, 2015, and upon reconsideration on September 8, 2015. (Id. at 78, 92.) On October 8, 2015, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (Id. at 107-08.) He appeared and testified at a hearing on February 16, 2017. (Id. at 52-69.) On June 6, 2017, the ALJ issued a decision finding him not disabled and denying his claim for benefits. (Id. at 29-51.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council on August 2, 2017. (Id. at 150-54.) The Appeals Council denied his request for review on June 25, 2018, making the ALJ's decision the final decision of the Commissioner. (Id. at 5-11.) Plaintiff timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (See doc. 1.)

         A. Age, Education, and Work Experience

         Plaintiff was born on October 13, 1963, and was 53 years old at the time of the hearing. (doc. 11-1 at 55, 155.) He completed two years of college and could communicate in English. (Id. at 55, 169.) He had past relevant work as a heavy delivery driver. (Id. at 66.)

         B. Medical Evidence[3]

         On May 27, 2014, Plaintiff presented to Texas Health Huguley (Huguley) with a back injury. (doc. 11-1 at 396-97.) A thoracic spine X-ray showed no acute fracture or subluxation.[4] (Id. at 397.) The following day, he presented to Gregory Gardner, D.O., for an evaluation of his back injury. (Id. at 448.) He reported that he worked as a delivery driver for United Parcel Service (UPS) and had injured his back when he caught a 130-pound package that had fallen off a dolly. (Id.) He immediately experienced a burning sensation and severe pain in his mid-back, and he also reported numbness and tingling to both hands. (Id.) He rated his current pain level as an 8 out of 10. (Id.) Dr. Gardner noted limited trunk rotation of 30 degrees to the left and 45 degrees to the right, focal point tenderness at the left and central T4, [5] and decreased strength of the trunk at flexion and extension. (Id.). Plaintiff's thoracic spine X-ray showed no compression or wedge fractures and exhibited “good alignment.” (Id.) Dr. Gardner diagnosed thoracic sprain/strain and thoracic spasms. (Id.) He prescribed Norco for the back pain and recommended rehabilitation therapy. (Id. at 449.)

         On June 2, 2014, Plaintiff had a follow-up appointment with Dr. Gardner. (Id. at 447.) He complained of continuing “burning” back pain, and numbness and tingling to both hands, and he rated his pain as a 7 out of 10. (Id.) Plaintiff's clinical findings were generally unchanged, and Dr. Gardner's initial diagnoses remained the same, but he also added the differential diagnoses of occult compression fractures and internal derangement of the thoracic spine. (Id.) The following week, Plaintiff reported that his symptoms and pain level had not changed. (Id. at 446.). Dr. Gardner noted that a spinal computed tomography (CT) study was needed to rule out a compression fracture, but he recommended that Plaintiff could return to work “with restrictions.” (Id.)

         On June 10, 2014, a CT of Plaintiff's thoracic spine showed minimal degenerative anterior endplate spurring of the upper thoracic spine, but no acute fracture or subluxation. (Id. at 336.) It was noted as an otherwise “normal CT of the thoracic spine.” (Id.)

         Plaintiff attended twelve physical therapy sessions at Total Injury Care in June 2014. (Id. 271-318.) On June 4, 2014, he reported his pain as a 7 out of 10, and was “walking very stiff and sore.” (Id. at 315.) Mild to moderate spasms were noted in the thoracic spine, but his range of motion had increased since his initial session. (Id.) Plaintiff reported at his next two sessions that his pain level had been decreasing, (id. at 307, 311), but he reported increasing pain at a subsequent session on June 9, 2014, (id. at 303). On June 11, 2014, he stated that the exercises had been helping increase his flexibility, but he continued having “spasm[s] bilaterally in the thoracic spine with bilateral rhomboid trigger points.” (Id. at 299.) At his next appointment, Plaintiff reported increased pain and was tender at the spinous processes between T4 and T9. (Id. at 295.) On June 16, 2014, his pain had decreased, and he stated that “the therapy is helping but only mildly.” (Id. at 291.) On June 20, 2014, Plaintiff's pain level had increased to an 8 out of 10, and he was not sleeping well because of cramps in the mid-back muscles. (Id. at 283.) At his final therapy session, he reported some decrease in pain, but still had mid-back cramping and morning stiffness. (Id. at 271.) He had continued experiencing moderate spasms in the thoracic spine, but was noted to have improved since his last session. (Id.) His range of motion had increased during this session. (Id.)

         Plaintiff met with Dr. Gardner again on June 12, 2014, June 30, 2014, and July 7, 2014. (Id. at 441-44.) At each appointment, he rated his pain level as a 7 out of a 10. (Id.) On June 12, 2014, Dr. Gardner noted that the recent thoracic spine CT did not show compression fracture, but Plaintiff was “unable to contain pain and spasms in the thoracic spine.” (Id. at 444.) He referred him to a pain management specialist for further evaluation and possible epidural steroid injection. (Id.) At his next two appointments, Plaintiff reported not sleeping due to pain. (Id. at 441-42.) He also stated that his back pain radiated to his right upper extremities and that he had numbness and tingling to the right hand. (Id.) Dr. Gardner noted decreased right hand grip strength, as well as decreased sensory to the fifth finger of the right hand. (Id.)

         On July 1, 2014, a thoracic spine MRI showed a benign hemangioma within T2 and a small dorsal disc osteophyte[6] complex at ¶ 2-T3, but no acute fracture or destructive marrow lesion. (Id. at 335.) The spinal canal was generally narrowed on the basis of short pedicles, which was exacerbated by multilevel disc disease, worst at ¶ 5-C6[7] with a distal protrusion measuring 4mm, and which resulted in mild to moderate spinal stenosis.[8] (Id.) There were also small disc protrusions at ¶ 6-T7, T7-T8, T8-T9, and T9-T10. (Id.)

         On July 23, 2014, Plaintiff presented to Mike Shah, M.D., P.A., for pain management consultation. (Id. at 252.) He reported his pain, which was sharp, shooting, and stabbing, and wrapped around the mid axillary line, as a constant 7 out of 10. (Id.) He also had stiffness of the lower midback region and occasional pain over his shoulder blade, numbness and tingling in his arms (more right than left), and occasional neck pain. (Id.) His thoracic spine examination showed limited range of motion for extension with greater rotation compared to flexion, and some pain with facet loading. (Id.) Dr. Shah observed tenderness around T5-T6 and T6-T7 on the paraspinal region, but no step-off or paraspinal atrophy.[9] (Id.) Neurologic examination was intact for light touch from T1 to T12, except for T5-T6-T7. (Id.) Plaintiff demonstrated intact motor strength in the upper and lower extremities, as well as symmetric reflexes. (Id.) Dr. Shah opined that his mid-back pain was from a sprain of the middle level “given his clinical examination and symptoms, mechanism of injury and diagnostic studies.” (Id.) He recommended injection therapy, especially given the exhaustion of Plaintiff's other conservative measures, which would be both diagnostic and therapeutic. (Id.)

         On July 24, 2014, Plaintiff presented to Dr. Gardner for a functional capacity evaluation (FCE). (Id. at 328.) He stated that any bending or use of the upper back increased his back pain, but rest and medication helped decrease it. (Id. at 330.) He also described symptoms of joint pain and joint swelling, and weakness and sensory changes of the upper body. (Id.) The symptoms caused him difficulties with bathing, dressing, sitting, lying down, standing, driving, riding, grasping, sleeping, and sexual activity. (Id.) Testing demonstrated hypoesthesia[10] of the right upper extremity dermatomes[11], and limited bilateral upper extremity deep tendon reflexes. (Id. at 330-31.) Thoracic examination showed decreased range of motion and “sharp ache pain.” (Id. at 324.)

         Functional specific testing produced incomplete results in right leg balancing, crawling, crouching, overhead reaching, squatting, and stooping. (Id.) Plaintiff was able to perform left leg balancing, kneeling, shoulder level reaching, sitting for 15 minutes, standing for 30 minutes, and walking for 10 minutes, but each task caused increased pain. (Id.) He self-terminated cardiovascular treadmill testing and dynamic lift testing due to increased pain. (Id. at 331-32.) Hand grip testing showed a 14 percent strength differential between his left and right hands, with the right being weaker. (Id. at 332.) Pinch grip of his left hand was 13 percent stronger than his right hand. (Id.) Vertebral fixations, trigger points, and muscle restrictions “in the area of injury” were observed. (Id. at 332.) Based on the objective findings from the testing, Dr. Gardner opined that Plaintiff did not “meet the requirements, safety, and performance ability to do [his] job safely, effectively, and confidently (without restrictions).” (Id. at 333.)

         From August 4, 2014 to April 27, 2015, Plaintiff had several follow-up appointments with Dr. Gardner. (Id. at 420-40.) His pain level ranged between a 6 and 7 out of 10. (Id.) On August 4, 2014, he reported that his thoracic spine pain was not improving. (Id. at 440.) On September 2, 2014, he complained that his back pain was unchanged. (Id. at 437.) In October 2014, Plaintiff continued experiencing numbness and tingling to the right upper extremities, and burning of the right hand due to loss of sensation. (Id. at 433.)

         On September 16, 2014, Plaintiff underwent a fluoroscopically guided bilateral T5-T6 epidural steroid injection. (Id. at 251.) Dr. Shah noted that other conservative measures had failed and injection therapy was required to alleviate pain and restore function. (Id.) Plaintiff tolerated the procedure well and without complications, and walked without difficulty upon discharge. (Id.)

         On October 15, 2014, Plaintiff returned to Dr. Shah. (Id. at 254.) He reported 20 percent relief from the injection, and his pain level had improved to a constant 6 out of 10. (Id.) He continued experiencing mid-back pain and numbness and tingling in his arms and left leg, however. (Id.) The mid-back pain would worsen with activity, lifting, and bending. (Id.) No. significant changes were noted from Plaintiff's physical examination. (Id. at 255.) Dr. Shah recommended further injection therapy targeting the bilateral T5-T6 and C6-C7 facet medial branches, and to follow-up with a rhizotomy[12] if relief was obtained. (Id.) A chronic pain program would be necessary if Plaintiff did not obtain pain relief from the additional injections, however. (Id.)

         On October 16, 2014, Plaintiff presented to a licensed psychological associate, Blythe Two Sisters, for a behavioral medicine consultation at the request of Dr. Gardner. (Id. at 344.) He rated his average daily pain as a 7 out of 10, which improved to a 5 out of 10 with medication. (Id. at 345.) He described the pain as aches in his left thigh area, stabbing and numbness in his thoracic spine area, and a “pins and needles” sensation with burning and numbness in his right arm. (Id.) He rated the level of interference caused by his pain as a 7 out of 10 on his recreational, social, and familial activities and ability to work, and as a 6 out of 10 with normal activities. (Id.) Plaintiff reported difficulty with acts of daily living, including yard work, exercise and playing sports, driving or sitting more than 30 minutes, standing longer than 40 minutes, bending, lifting or carrying more than twenty pounds, climbing stairs, and doing household repairs. (Id.) He rated his current level of “overall functioning in life” at 50 percent. (Id.)

         On December 11, 2014, Plaintiff presented to Edward Tang, D.C., for a Workers' Compensation (WC) designated doctor evaluation. (Id. at 470.) He reported pain in the neck, mid-back, right arm, hand, and fingers. (Id. at 473.) His associated symptoms included numbness in the right arm, a pins and needles sensation in the mid-back and neck, a tingling sensation in the right arm and left leg, and a burning sensation in the neck. (Id.) He rated his current pain as a 7 out of 10, but it ranged between a 6 and an 8 out of 10. (Id.) Plaintiff's pain was consistent and on/off in nature, and would worsen with bending, sitting, weather changes, sleeping, pulling, pushing, stooping, and walking. (Id.) Dr. Tang noted that he ambulated into the examination room with a limp to the left, but did not utilize any supportive devices. (Id.)

         Palpation of the thoracic spine revealed tenderness and muscular spasm at the right T6-T8 levels. (Id.) Compression tests of the lateral, anterior, and posterior rib were all positive on the right. (Id.) Testing of the spinal dermatomes showed mildly decreased sensation on the right C5 through right C8 nerve distribution. (Id.) Plaintiff was right hand dominant but had weaker right hand grip strength; strength testing of his right side was fair but normal on the left. (Id. at 959.) Dr. Tang opined that Plaintiff reached maximum medical improvement (MMI) on October 6, 2014, and assigned him a 5 percent whole person impairment rating based on the spasms and restricted motion of the thoracic spine, but no evidence of neurological deficits. (Id.) Dr. Gardner disagreed with Dr. Tang's certification of MMI and 5 percent impairment rating, however. (Id. at 465, 568-69.)

         On February 2, 2015, Plaintiff presented to Dr. Gardner for a second FCE. (Id. at 321.) He continued showing decreased sense of touch or sensation of the right upper extremity dermatomes, and diminished thoracic range of motion. (Id. at 324.) During functional specific testing, he was unable to complete left leg balancing, crawling, crouching, kneeling, overhead reaching, squatting, and stooping. (Id.) He performed right leg balancing, shoulder level reaching, sitting for 15 minutes, and standing for 30 minutes, but still experienced increased pain. (Id.) Plaintiff was unable to complete cardiovascular treadmill testing because of increased pain and decreased function of his left leg. (Id.) Hand grip testing showed diminishing right hand grip strength, and the difference in grip strength between his left and right hands increased to 63 percent. (Id.) Pinch grip strength of his left hand was 53 percent more than of his right. (Id.)

         Dr. Gardner noted that Plaintiff demonstrated a lack of cardiovascular fitness due to deconditioning, but had made objective improvements in static strength and dynamic lifting since the July 2014 evaluation. (Id. at 326.) He opined that Plaintiff did not meet the requirements, safety, and performance ability to do his job safely, effectively, and confidently, but would be “capable of returning to gainful employment with restrictions.” (Id. at 326.) In assessing Plaintiff's ability to work as a delivery driver, Dr. Gardner determined that he could only return to work with the following restrictions: sit with no restrictions; stand 1 to 2 hours with pain; push/pull up to 30 pounds, but not kneel/squat or bend/stoop; walk, climb stairs/ladders, and overhead reach for 1 to 2 hours with pain; reach for 2 to 4 hours with pain; and lift up to 20 pounds occasionally and 10 pounds frequently. (Id. at 319-20.)

         On February 9, 2015, Plaintiff returned to Dr. Gardner for a WC MMI and impairment rating examination. (Id. at 462.) He presented with “moderate residual symptomatology in the thoracic spine region with persistent numbness in the fingers of his right hand.” (Id. at 463.) Dr. Gardner reported that he was cooperative throughout the examination, and there were no signs of symptom magnification or lack of effort. (Id. at 464.) Plaintiff reported difficulties in all his normal activities of daily living. (Id.) He was observed having “some difficulties” with range of motion, but there was no evidence of bruising, atrophy, or abnormal growths in the injured area. (Id.) Palpation of the mid-back revealed moderate tenderness and measurable restricted range of motion of the thoracic region. (Id.) Soft tissue examination of the area of injury was positive for muscle restrictions, trigger points, and vertebral fixations along the thoracic spine. (Id.) Plaintiff's diagnoses were displacement of thoracic intervertebral disc without myelopathy, [13] thoracic sprain/strain, and spasm of muscle. (Id. at 465.) Dr. Gardner opined that his clinical condition had not stabilized, further material improvement was likely, and he had not reached clinical MMI. (Id.) He anticipated the date of MMI to occur following additional pain management, including injections to the affected area, as well as participation in a functional restoration program that could reasonably be completed within a two to three month period. (Id. at 466.)

         On February 26, 2015, Plaintiff presented to A. Eric Gioia, M.D., for surgical evaluation. (Id. at 339.) Dr. Gioia reviewed the June 2014 thoracic CT scan and the July 2014 thoracic MRI and found some spondylitic[14] changes in the thoracic region. (Id.) He noted that there was no study of his cervical or lumbar spine, however. (Id.) Plaintiff had sustained an earlier work-related cervical injury in 2000, but was able to return to work after two years of conservative treatment. (Id.) Dr. Gioia reported that “he persists with his present complaints of interscapular pain and intermittent numbness especially of his right arm and low-back pain and dysfunction especially of his left leg with paresthesias[15] and give-way weakness.” (Id.) Plaintiff was observed dragging his left leg and walking with an antalgic gait. (Id.) Neck extension caused interscapular pain and straight leg raises caused low back discomfort. (Id. at 339-40.) Dr. Gioia opined that his main complaints were related to the cervical and lumbar spine, and additional imaging of the cervical and lumbar spine would be necessary to rule out any instability. (Id. at 340.)

         On February 29, 2015, Plaintiff presented to the emergency room at Huguley with abdominal pain. (Id. at 780.) Examination of his musculoskeletal symptoms revealed no back or joint pain and revealed normal strength and range of motion. (Id. at 780-81.) No. focal neurological deficit was observed. (Id. at 781.)

         In a letter dated March 24, 2015, Dr. Gardner provided his medical opinion on the causation and extent of Plaintiff's injury in connection with his WC claim. (Id. at 555-57.) He noted that the workplace injury was the cause of his thoracic sprain/strain, thoracic spasms, and thoracic disc syndrome. (Id. at 555.) Based on his review of the July 1, 2014 lumbar spine MRI, he opined that Plaintiff sustained a 5 mm dorsal disc herniation at ¶ 5-T6, which combined with spondylosis, [16]caused moderate spinal stenosis. (Id.) The “mechanism of injury of catching” a 100 pound package was consistent with T5-T6 disc herniation and moderate spinal stenosis, and “caused compressive and rotational forces to (at least) his thoracic spine which stressed the soft tissues, discs and joint structures of his spine and produced the T5-6 disc herniation.” (Id.) He further opined that Plaintiff was “prematurely placed at MMI by Dr. Tang, ” and the additional diagnostic and treatment modalities prescribed by Dr. Gioia would, “in all medical probability, [] help to significantly improve his condition.” (Id. at 555-56.)

         On May 7, 2015, Leigh McCary, M.D., a state agency medical consultant (SAMC), completed a physical residual functional capacity (RFC) assessment based on the medical evidence. (Id. at 73-75.) She opined that Plaintiff had the physical RFC to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk (with normal breaks) for about 6 hours in an 8-hour workday; sit (with normal breaks) for about 6 hours in an 8-hour workday; push and pull an unlimited amount of weight, other than shown for lift and carry; frequently climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; occasionally stoop; and frequently balance, kneel, crouch, and crawl, with no manipulative, visual, communicative, or environmental limitations. (Id. at 73-74.) Dr. McCary referenced Plaintiff's July 1, 2014 thoracic MRI, December 11, 2014 MMI evaluation, and February 9, 2015 MMI evaluation. (Id. at 74.) She also noted that his alleged limitations were not fully supported. (Id.)

         On June 8, 2015, Plaintiff presented to the Dallas Veterans Affairs Medical Center (VA Center) with neck pain and right arm numbness. (Id. at 872.) A cervical spine X-ray showed degenerative disc disease at ¶ 6-C7 and degenerative spurring, but no acute fracture or dislocation. (Id.) On June 10, 2015, a second cervical spine X-ray was conducted to look for instability. (Id. at 871.) No. instability was visualized, but there was “degenerative disc disease at ¶ 5-C6 and C6-C7 with anterior posterior osteophytes” with potential encroachment on the spinal canal. (Id.)

         On July 17, 2015, a cervical spine MRI showed maintained vertebral body height and alignment and a vertebral body hemangioma at ¶ 2. (Id. at 866.) There was partial disc desiccation at all levels with disc height loss at ¶ 6-C7, and borderline congenital narrowing of the central canal. (Id.) It was compared with a prior MRI, and the impression was degenerative change in the cervical spine that appeared stable and notable for varying degrees of multilevel central and foraminal narrowing.[17] (Id.) There was also an abnormal right hemicord signal from C4 through T1, presumed to be a syrinx, [18] which was unchanged in appearance. (Id.) A thoracic spine MRI was also conducted and showed maintained vertebral body height and alignment. (Id. at 868.) It was compared with a March 20, 2014 MRI, and the notable findings were a T5-T6 central disc extrusion, a T6-T7 central disc protrusion, and mild narrowing of the the cal sac. (Id.)

         On July 23, 2015, Plaintiff was seen at the VA Center by a neurosurgery nurse practitioner (NP) for a follow-up. (Id. at 950.) It was noted that he had sustained a cervical fracture and lower extremity injuries from a jet blast while serving in the Air Force in the 1980s. (Id. at 951.) Soon after, he experienced pain and numbness in his right arm and leg with slow progression over the years. (Id.) He described his right arm as feeling “dead” and “persistently asleep.” (Id.) His right arm had always felt weaker than the left, and he was positive for CVA, or costovertebral angle tenderness, and right-sided hemiparesis[19] in 2008. (Id.) He also had numbness in the left finger tips, as well as intermittent “hot iron rod sensation” down the left arm. (Id.) His last thoracic injection caused numbness in the left leg, which was his reason for not pursuing additional injections. (Id.) It was noted that he walked with a mild chronic limp on the right. (Id.) His right hand grip strength was diminished, and sensation was decreased along a nondermatomal distribution of the right upper extremity and the entire right fingers. (Id.) His left upper extremity and bilateral lower extremities were intact, and he was negative for Hoffmann, [20] Clonus, [21] and Babinski.[22] (Id.)

         Plaintiff was assessed with chronic history of neck pain, bilateral pain, and paresthesias, more right than left. (Id. at 952.) The NP noted that the jet blast injury might account for his chronic symptoms, but the degree of stenosis was “out of proportion to explain the abnormal cord signal” found in recent imaging studies. (Id.) Plaintiff had some “moderate neuroforaminal stenosis on the right at ¶ 6-7, ” but no worsening of chronic symptoms. (Id.) The NP further noted that his disc protrusions at ¶ 5-T6 and T6-T7 remained stable compared to a prior MRI, and there was no severe central canal stenosis. (Id.) He was instructed to continue with his current pain medication regimen for chronic pain syndrome. (Id.)

         On September 2, 2015, Laurence Ligon, M.D., another SAMC, reviewed the medical evidence. (Id. at 85-87.) It was noted that since April 2015, Plaintiff had been experiencing constant pain in his arm, with the numbness “becoming longer and longer.” (Id. at 80.) Nevertheless, Dr. Ligon's physical RFC did not differ from Dr. McCary's. (Id.) He found Plaintiff's alleged limitations partially supported by the medical evidence and other evidence in the file. (Id. at 87.)

         On November 4, 2015, Plaintiff presented to David Rees, M.D., at the VA Center for neurologic examination. (Id. at 942.) Dr. Rees reported that the VA Center had been treating him for neck and back pain, as well as a neurologic condition of both arms described as the “paralysis of middle radicular nerves.” (Id.) He opined that Plaintiff's “neurologic complaints are secondary to his spinal cord myelomalacia, [23]” which was not etiologically related to his military service. (Id.)

         On January 8, 2016, Plaintiff saw Siva Vurimi, M.D., at the VA Center for routine evaluation. (Id. at 936.) He reported left leg numbness that had been constant for a year, as well as chronic neck and lower back pain that he described as numbness, stabbing, and “pins and needles, ” which increased when sitting too long. (Id. at 938-39.) Dr. Vurimi's assessment was cervical radiculopathy[24] and displacement of thoracic intervertebral disc without myelopathy. (Id. at 937.)

         On May 27, 2016, Plaintiff returned to Dr. Vurimi for a follow-up appointment. (Id. at 902.) He continued experiencing chronic neck and upper back pain with numbness in both arms. (Id.) He rated his pain level as an 8 out of 10, and described the pain as aching, numbness, sharp, shooting, throbbing, and tingling. (Id. at 905-06.) He reported that walking a lot, sitting too long, and bending would ...

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