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K. F. v. Astrue

February 11, 2010


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


In this proceeding, Plaintiff, by and through his guardian ad litem, Sarah F., seeks judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying his application for Supplemental Security Income (SSI) benefits. In his October 21, 2005, application, Plaintiff alleged that he had a disability due to problems with hearing, speaking, communicating, and completing tasks, his short attention span and poor memory, his poor coordination and his need for prompting with self care. (A.R. 170.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).

The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Christopher Larsen dated January 23, 2008 (A.R. 10-19). His decision was rendered after a hearing held on November 14, 2007, at which Plaintiff and his mother appeared, and Plaintiff testified with the assistance of counsel (A.R. 10, 431-63). The Appeals Council denied Plaintiff's request for review on June 2, 2008 (A.R. 2-4), and thereafter Plaintiff filed his complaint in this Court on July 30, 2008. Briefing commenced on May 5, 2009, with the filing of Plaintiff's brief. Defendant filed opposition on June 8, 2009, and Plaintiff's reply was filed on June 23, 2009. The matter has been submitted without oral argument to the Magistrate Judge.

I. Jurisdiction

Plaintiff's complaint was timely filed on July 30, 2008, less than sixty days after the mailing of the notice of decision on or about June 2, 2008. 42 U.S.C. §§ 1383(c)(3) and 405(g)

II. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner. The determination of the Commissioner as to a factual matter will stand if it is supported by substantial evidence because it is the Commissioner's duty, rather than the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards.Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

III. Disability

In determining disability in children with respect to SSI benefits, the SSA will consider whether the child is performing substantial gainful activity. If not, the SSA must consider whether an impairment or combination of impairments is severe and if severe, whether the impairments meet, medically equal, or functionally equal the listings. Finally, the SSA must determine whether such impairments have lasted, or are expected to last, for twelve continuous months. 20 C.F.R. §§ 416.923, 416.924(a). If the child's impairment meets or functionally equals an impairment in the listings and meets the durational requirement, then disability is conclusively presumed and benefits are awarded. 20 C.F.R. §§ 416.924(d). If the impairment does not meet or functionally equal a listed impairment or meet the durational requirement, then the child is not disabled. 20 C.F.R. § 416.924(d)(2). SSI benefits are not payable until the month after the month in which the claimant applied for SSI. 20 C.F.R. § 416.335.

Here, the ALJ found that Plaintiff, who was born on March 13, 1999, and thus was a school-age child at all pertinent times, was not engaged in substantial gainful activity and had severe impairments of attention deficit/hyperactivity disorder, borderline intellectual functioning, learning disorder not otherwise specified and fetal-alcohol effects. (A.R. 13.) The ALJ concluded that Plaintiff had no impairment or combination thereof that met, medically equaled, or functionally equaled the listed impairments. Accordingly, the ALJ determined that he was not disabled.

Plaintiff argues 1) the ALJ erred in not expressly or "facially" (Pltf.'s Brief, p. 5) addressing the question of whether Plaintiff's impairments equaled listing 112.05 for mental retardation; and 2) the ALJ erred in rejecting objective testing and opinion evidence that Plaintiff asserts established that Plaintiff had marked dysfunction in multiple areas.

IV. Medical Evidence of Functioning

The ALJ considered Plaintiff's entire medical history, including that which preceded October 21, 2005, the date of Plaintiff's application for benefits. (A.R. 10.)

In May 2003, senior counselor Sidney R. Jackson II of the Central Valley Regional Center (CVRC) assessed Plaintiff, who was four years old at the time, for speech that reflected impaired articulation and significant delays in development. (A.R. 55-57, 255-57.) Audiologic evaluation reflected hearing in both ears that was within normal limits. (A.R. 260-61.) In June 2003, Matthew A. Battista, Ph.D., evaluated Plaintiff to determine eligibility for CVRC services. (A.R. 421-24.) Plaintiff's mother reported that he had communication difficulties, hyperactivity, difficulty sharing and interacting with other children, greater difficulty behaving with the mother, and attention-seeking behaviors. Id. However, the mother reported that Plaintiff colored, drew, and engaged in age-appropriate forms of imaginary play with toys and games with a younger sibling. (A.R. 422)

The examiner observed Plaintiff's deteriorating behavior during the session that, in his opinion, reflected oppositional conduct as distinct from being related to a level of activity or cognitive problem. (A.R. 422-3) The examiner determined that Plaintff's test results on the Stanford-Binet Test of Intelligence (4th ed.) were verbal reasoning, 71; abstract/visual reasoning, 89; quantitative reasoning, 88; short-term memory not computed, with a partial test composite score of 80. The results of the Vineland Adaptive Behavior Scale were communication domain, standard score of 71, age-equivalent of 1-10; daily living skills domain, 66, age equivalent 2-5; socialization domain, 84, age equivalent 1-11; and motor skills domain, 84, age equivalent 3-5, with an adaptive behavior composite of 66. (A.R. 423.) Jackson believed that Plaintiff's level of activity, sustained attention when structured and social functioning, aside from conduct issues, were relatively intact. Jackson opined that Plaintiff's below-average verbal skills and unruly behavior did not appear to be cognitively based or due to intrinsic social deficit or problems with attention/level of activity. Rather Jackson believed that they were conduct-discipline-based issues.

Jackson provided a diagnosis as mixed receptive expressive language disorder. He recommended speech and language evaluation, enrollment in pre-school with focus on enhancing communication ability and parenting classes for the mother. (A.R. 424.)

In July 2003, a multi-disciplinary team that reviewed Plaintiff's case determined that Plaintiff was not eligible for CVRC. (A.R. 251-52.) Dr. Pean Lai evaluated the psychological and social information in the chart and determined that Plaintiff did not have mental retardation although Dr. Battista determined that he had mixed receptive and expressive language disorder. (A.R. 251.)

In October 2003 a note by Sheri Rossi, M.A., L.M.F.T., indicated that Plaintiff's mother had called concerning Plaintiff's aggressive and hurtful behavior to his siblings, and in November 2003, a plan of care was created. (A.R. 391-94.) A couple of therapy sessions occurred, but due to repeated failures to attend, the file was to be closed by January 2004. (A.R. 383-90.)

In November 2003, Plaintiff was evaluated by the County of Fresno Department of Children and Family Services (DCFS). (A.R. 407-18.) Plaintiff's mother complained of hyperactivity, distraction, and aggressive and self-destructive behavior. The Licensed Clinical Social Worker diagnosed Plaintiff with attention deficit/hyperactivity disorder, not otherwise specified and disruptive behavior disorder, not otherwise specified. (A.R. 416) The LCSW determined Plaitniff's global assessment of functioning (GAF) score was 60. (A.R. 416.) The LCSW felt that part of Plaintiff's hyperactivity and oppositional behavior resulted at least in part from a lack of consequences for misbehavior. Id. The LCSW recommended individual, family and collateral therapy. (A.R. 416-17.)

In January 2005, Stephen Sacks, M.A., CCC-SLP, Speech/Language Specialist, evaluated Plaintiff's phonological processes. Tests results revealed that Plaintiff had an articulation deficit, but that his voice and fluency were adequate. Sacks recommended that Plaintiff undergo speech therapy. (A.R. 109-10.)

In July 2005, David L. Hellwig Ph.D., from DCFS, performed a clinical assessment of Plaintiff, who was six years old at the time. (A.R. 402-06, 395-96.) Plaintiff's mother reported Plaintiff displayed anger and impulsive behavior. Dr. Hellwig's mental status exam revealed that Plaintiff had poor articulation, memory, comprehension, judgment, and insight. He diagnosed Plaintiff as having ADHD, depressive disorder, not otherwise specified; disruptive behavioral disorder, not otherwise specified. Dr. Hellwig wanted to rule out pervasive developmental disorder, anxiety disorder, PTSD, ODD and intermittent explosive disorder. Dr. Hellwig determined that Plaintiff had a GAF score of 50. Dr. Hellwig noted that a strength of Plaintiff's was his ability to follow the clinician's directives during the assessment. (A.R. 405, 397.)

In October 2005, G. Michael Bishop, Ph.D., L.M.F.T., wrote to Plaintiff's mother to provide a brief summary of the July assessment of Plaintiff. (A.R. 250.) Dr. Bishop related that the purpose of the assessment was to determine the seriousness of Plaintiff's symptoms of difficulties sustaining attention, being easily distracted and hyperactive, being easily frustrated and experiencing strong temper outbursts, and exhibiting opposition to adult directives and difficulty regulating emotions and impulses. After reviewing a previous assessment and treatment history, Dr. Bishop determined that the symptoms were seriously disrupting Plaintiff's academic and family adjustment. He recommended outpatient therapy and diagnosed the boy with symptoms consistent with combined type, attention deficit hyperactive disorder. (A.R. 250.)

On August 12, 2005, the mother and Plaintiff had a counseling session at which time,the therapist and mother determined that she would engage in Behavior Management training for ADHD behaviors, and to discuss the use of medications and possible referral. (A.R. 381.) The record indicates that the mother attended four sessions. (A.R. 374-380) On October 5, 2005, the therapist determined that he would meet with the parent on an as-needed basis. (A.R. 374-78.)

In October 2005, Dr. Razia Sheikh prescribed Concerta to addresss Plaintiff's ADHD diagnosis. (A.R. 304.)

In December 2005, Dr. Sachs reported that Plaintiff showed excellent progress since January 2005, when speech therapy had commenced. His articulation disorder did not interfere with his being understood ninety per cent of the time. He could follow single-step instructions and his condition did not cause problems in academic performance, socializing, or deficiencies in maintaining concentration, persistence, or pace. Dr. Sachs refused to report his previous test scores because "Initial reports are not longer appropriate as he has improved so much." Dr. Sachs reported that Plaintiff would be discharged within the next few months. (A.R. 359-61.)

In January 2006, the speech therapist assessed Plaintiff's present levels of educational performance and opined that Plaintiff had made significant improvement in his speech and was able to say correctly almost all of his previously erroneous sounds. (A.R. 103.)

In January 2006, Plaintiff's mother reported to therapist Dr. Bishop that Plaintiff was getting medication from his pediatrician and was doing much better. However, the mother wanted to transfer his care from the pediatrician to the clinic. This would necessitate a transfer of the case to a new therapist due to Dr. Bishop's change to other programs. Dr. Bishop noted that the mother "appears to still want assistance although child is doing much better now." (A.R. 313.)

In late February 2006, licensed mental health clinician Paula Harris, noted that Plaintiff had been taking Concerta for two months. He had demonstrated dramatic improvement in his Plaintiff's behavior and ability to focus and learn at school. His mother continued to complain about his behavior at home, though. Harris planned weekly therapy sessions to help Plaintiff, who had been abandoned by his father, with his anger and feelings of loss and abandonment. (A.R. 312.)

At a mid-March therapy session, Plaintiff drew good pictures, successfully played an unfamiliar card game after catching on very quickly, and exhibited an affect matching excitement; he warmed quickly to the therapist despite being shy. The plan was to work on developing trust so that they could begin to deal with his behavior problems, which were primarily at home. (A.R. 310.) In later March the therapist, who was leaving the county, reported that Plaintiff was a bright child who might appear to be slow if one did not take time to know him. Plaintiff continued angry outbursts at home, but not at school. Harris planned to transfer the case to a permanent therapist and recommended support with parenting skills for the mother. (A.R. 309.)

In March 2006, Plaintiff's pediatrician refilled his ADHD prescription. The doctor noted that Plaintiff was "Doing very well." (A.R. 306.) The doctor continued to refill the medication throughout 2006. (A.R. 305.)

On May 26, 2006, consulting examiner Lynne Leeper Reinfurt, Ph.D., DABPS, reviewed the previous assessments and Plaintiff's discharge from speech therapy around December 2005. She completed a psychological evaluation and examination of Plaintiff at the request of the Department of Social Services Disability Evaluation Division to obtain information for determining the eligibility of Plaintiff for disability services. (A.R. 354-56.) Plaintiff's mother reported clumsiness, poor management of personal hygiene and activities of daily living, moodiness, failure to get along well with others, and tantrums. Dr. Reinhurt noted that Plaintiff had not been receiving special services in his first grade classroom and he had good academic abilities. He was uncooperative at home and struggled with his siblings. Plaintiff had taken Concerta before the appointment. He was alert, oriented for person, with adequate attention and concentration, adequate knowledge, concrete thought processes, and cognitive ability probably within the low average range with no evidence of disordered thinking or bizarre ideation. Speech was clear and coherent; initially immature affect and manner changed in response to basic interventions and he was very responsive and worked quite well throughout a lengthy evaluation. Generally somber, Dr. Reinbhurt noted that he displayed a "dimpled smile now and then," that he had adequate rapport and rather good frustration tolerance. He reported that he liked school and had friends there. The assessment was considered an adequate estimate of Plaintiff's capabilities. (A.R. 354-55.)

Dr. Reinfurt administered the Wechsler Intelligence Scale for Children-IV (WISC-IV), with a composite score for a full scale IQ of 78, indicating a borderline to low average range of cognitive functioning, with subtest scaled scores ranging from five to nine. His prorated verbal comprehension index score was 89, his prorated perceptual reasoning index score was 82, his working memory index score was 83 and his processing speed index was 75. Plaintiff had problems focusing his attention during timed tasks requiring quick, accurate scanning, sequencing or discrimination of simple visual information. (Id. p. 355.)

On the Wide Range Achievement Test (third ed.), Plaintiff produced academic achievement scores ranging from first to third grade reading, with effective use of phonetic strategies. Dr. Reinhurt noted that Plaintiff was weaker in number concepts with his arithmetic scores at the first grade equivalent. The Bender Gestalt Test II (second ed.) produced a standard score of 107, which was average. However, a score of 85 on recall placed him in the low average category and Dr. Reinhart indicated that this might reflect an attentional problem. (Id.)

Plaintiff's scores on the Vineland Adaptive Behavior Scales, which test communication, daily living skills, and socialization, were very low to average. Plaintiff's academic ability and socialization skills were quite strong although his management of activities of daily living was very deficient. Dr. Reinfurt wondered if the low score might reflect low expectations from the family as well as ineffective management of behavior. (A.R. 355.)

Dr. Reinfurt's diagnosis was combined-type ADHD with relational problem not otherwise specified. (A.R. 356.) Dr. Reinfurt opined that the evaluation suggested that some control over Plaintiff's combined-type ADHD had been achieved. Also, she believed that Plaintiff's intellectual functioning was in the low average range and he was learning academic skills. Plaintiff's demonstrated quick receptivity to basic behavior management techniques suggested that he could be function at a more mature level and would have more stable moods if his mother and teachers were employing such tools. (A.R. 356.) Plaintiff had the ability to understand and respond to requests, instructions and questions at a nearly age-appropriate level. Plaintiff's communication skills involving the initiation, use, and comprehension of language were somewhat below average. Dr. Reinfurt recommended involvement in physical activity typical of Plaintiff's age group, management of his immature behaviors, and consideration of an Individual Education Plan or a 504 plan in the school setting. (Id.)

State agency psychiatrist, Dr. H. Bilik completed a childhood disability evaluation of Plaintiff on July 24, 2006, and opined that Plaintiff's ADHD, disruptive behavior disorder, speech delay, and receptive/expressive language delay were severe but did not meet, medically equal, or functionally equal the listings. (A.R. 345-53.) Dr. Bilik found less than marked limitations in all six domains. With respect to interacting and relating with others, Dr. Bilik noted that there was less than a marked limitation in speech, relying on the improvement in Plaintiff's speech after therapy in 2005 and 2006 which reflected clear and coherent speech with normal vocal tone and prosody. (A.R. 347.)

Consulting, non-examining practitioner Patti Solomon-Rice, M.A., certified child counselor and speech and language therapist, conducted a speech and language review of Plaintiff on August 3, 2006. She concluded that the evidence permitted a determination that Plaintiff had less than marked impairments in both speech and language as well as in all domains. Her signature appears on the same page as that of H. Bilik. (A.R. 353, 345-50, 346.)

On January 10, 2007, Plaintiff, then a second grader, was evaluated by Joan Allen, L.C.S.W., and senior licensed mental health clinician at the county's DCFS, at the request of Plaintiff's mother. The mother was reporting that Plainiff had angry outbursts, was argumentative and had self-destructive behavior, distractibility causing failure to complete tasks, restlessness, temper tantrums, impulsiveness, and aggression, and difficulty playing with peers, who bullied him. (A.R. 314-23.) The mother reported that Plaintiff lied and stole, got into trouble, denied his mistakes or blamed others, failed to finish things, was easily frustrated, was childish, and did not like rules. (A.R. 308.)

Allen noted that Plaintiff's history included abandonment by his father, two years of homelessness that interfered with therapy in 2003 and 2004, therapy for half a year in 2005 and 2006, and medication with Concerta. Allen observed that Plaintiff's appearance, speech, and behavior were normal. His thought was logical, goal-directed, and coherent with content that was within normal limits. Allen opined that Plaintiff's immediate, short-term, remote, and long-term memory were intact and his abstraction, interpretation, judgment, insight, calculations, and general fund of information were fair. Allen felt that Plaintiff was cooperative but guarded. She noted that his mood was calm, angry, worried, and irritable with frequent anger and annoyance over trivial matters. Plaintiff's mother stated that Plaintiff had no affect, which caused difficulty in recognizing his feelings. (A.R. 320.) Plaintiff was oriented, and he denied hallucinations or delusions. With respect to medical necessity, Allen believed that there was probability of significant impairment in living arrangement, health, social support, and daily activities. (A.R. 321.) Allen's diagnosis was ADHD, combined type, rule out oppositional defiant disorder, with a GAF score of 60. (A.R. 314, 321.) Allen believed that Plaintiff's strengths were that he was easily engaged and responsive to questions. However, his special status situation was poor impulse control. Allen's clinical assessment summary noted that Plaintiff demonstrated intermittent disruptive behavior in school and numerous behavioral problems with aggression towards younger siblings, difficulty getting along with peers, disruptive behavior at home, poor judgment, arguments with and lying to his parent, externalization of blame, low frustration tolerance, and poor self-esteem. Allen's treatment plan was to reduce Plaintiff's angry outbursts from daily to two to three times a week via medication, outpatient services for Plaintiff and the family, and parenting classes for Plaintiff's mother.

On February 6, 2007, Dr. Sheikh refilled Plaintiff's Concerta for ADHD. (A.R. 303.) Between February 5, 2007, and October 12, 2007, Plaintiff underwent rehabilitation counseling with Pierre Xiong, CMHS II, to help reduce angry outbursts and oppositional, defiant behaviors. (A.R. 249-197.) On numerous occasions, Plaintiff's mother failed to communicate about scheduling appointments or missed sessions. (A.R. 235, 231 [March 2007, a "number of missed sessions"], 232, 231 [mother chose to postpone therapy until anger management was completed], 228 [notes concerning mother's lack of cooperation and result of less frequent services], 214, 210, 208, 207, 206.) Xiong also met with Plaintiff's mother to encourage her to continue to give Plaintiff the support he needed. (A.R. 244.) Plaintiff was cooperative and followed directions well. (A.R. 243, 236, 232, 227, 225, 223.) Sometimes he had trouble focusing on tasks and following directions and needed redirection and encouragement to stay on track. (A.R. 239, 225, 223, [distraction still an issue], 215 [boundaries and distraction were issues].) Xiong recommended close supervision of Plaintiff's behavior at home. (A.R. 238.) Plaintiff reported improvement in his relationships with his peers at school and eventually his siblings, and an improved ability to focus on tasks, listen to his teacher, cope with anger, and participate in class activities. (A.R. 232-33, 227.)

In April and May 2007, Plaintiff's mother reported improvement at home but continuing problems with aggression and completion of tasks at school. (A.R. 226, 224.) In August 2007 (soon after Plaintiff had begun Risperdal in addition to Concerta), Plaintiff reported that he could not wait until school started again. (A.R. 209.) He seemed to follow directions a lot better, had good eye contact, participated in the session well and had a better understanding of his limits. (A.R. 209.) However, in September 2007, Plaintiff's mother reported that, after having missed the last few rehabilitation counseling sessions, Plaintiff had engaged in worsening behavior, with defiance, disruption, aggressive and immature behavior. and refusal to groom himself or complete tasks. The mother reported also that the teacher had called twice about Plaintiff's disruptive, inattentive behavior and refusal to complete his tasks. (A.R. 204.) Because Plaintiff's mother's work interfered with her bringing him to therapy, the therapist agreed to begin seeing him at school. (A.R. 204.) Plaintiff reported improvement with the exception of getting in trouble once in class; it was noted that he had good eye contact and a better understanding of his limits. (A.R. 203.)

By late September 2007, Plaintiff reported to Xiong that he was doing a lot better and was able to groom himself and get ready for school for the last few days without asking by his mother. He continued to have problems listening to his teacher, completing his tasks, and getting angry because he did not understand the work sometimes, and no one helped him. (A.R. 199.) By October 2007, Plaintiff reported that he was less angry because he behaved better and had better communication with his teacher. He reported that he asked for help and was able to complete his work and turn it in almost every day. (A.R. 197-98.)

On February 24, 2007, consulting, examining psychiatrist Dr. Ekram Michiel evaluated Plaintiff after reviewing medical records and obtaining a history from Plaintiff's mother. The mother reported to Dr. Michiel that Plaintiff had only started to speak a year previously, used to stay alone and would not communicate with the family, did not show any emotions, had angry outbursts and fights and could not focus or stay still, despite a year of medication with Concerta. The mother reported that the medication helped Plaintiff's hyperactivity but did not cure his inability to concentrate. (A.R. 283-85.) Plaintiff's hobby was reading. When Dr. Michiel met with Plaintiff, initially he was laying down under the desk and did not want to come out. When he finally emerged, was hyperactive and went through all the paper on the examiner's desk and Dr. Michiel could not involve him in a conversation. Based on only history and observation, Dr. Michiel was "leaning to" (A.R. 284) the diagnosis of autistic syndrome based on delayed speech, isolated manner of behavior, and inability to communicate socially. However, Dr. Michiel noted that another "possible diagnosis" was attention deficit hyperactivity syndrome, based on his taking Concerta, which had helped a little. Dr. Michiel determined that Plaintiff's GAF score was 65. Dr. Michiel stated that he believed that Plaintiff could handle his daily activities, but he needed special education and attention and social therapy. However, Dr. Michiel noted that it was very difficult to assess his cognitive skills because of his resistance to getting involved in the interview. (A.R. 283-84.)

On April 18, 2007, non-examining state agency psychiatrist J. A. Collado, M.D., reviewed all the evidence in the file and the assessment of Patti Solomon-Rice conducted on August 3, 2006, and expressly ...

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