Turner v. Commissioner of Social Security, No. 1:2019cv03116 - Document 17 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)

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Turner v. Commissioner of Social Security Case 1:19-cv-03116-MKD Doc. 17 ECF No. 17 filed 05/12/20 PageID.846 Page 1 of 31 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 May 12, 2020 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GREGORY T.,1 SEAN F. MCAVOY, CLERK No. 1:19-cv-03116-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 12 13 14 15 1 To protect the privacy of plaintiffs in social security cases, the undersigned 16 identifies them by only their first names and the initial of their last names. See 17 LCivR 5.2(c). 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant. See Fed. R. 20 Civ. P. 25(d). 2 ORDER - 1 Dockets.Justia.com Case 1:19-cv-03116-MKD 1 ECF No. 17 filed 05/12/20 PageID.847 Page 2 of 31 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 3 6. The Court, having reviewed the administrative record and the parties’ briefing, 4 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 5 motion, ECF No. 14, and denies Defendant’s motion, ECF No. 15. 6 7 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 2 ORDER - 2 Case 1:19-cv-03116-MKD 1 ECF No. 17 filed 05/12/20 PageID.848 Page 3 of 31 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 9 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 13 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be “unable to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than twelve 18 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 19 “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of 2 ORDER - 3 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.849 Page 4 of 31 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. 20 C.F.R. § 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 2 ORDER - 4 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.850 Page 5 of 31 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 20 adjusting to other work, the Commissioner must find that the claimant is not 2 ORDER - 5 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.851 Page 6 of 31 1 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 2 other work, analysis concludes with a finding that the claimant is disabled and is 3 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant 8 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 9 700 F.3d 386, 389 (9th Cir. 2012). 10 ALJ’S FINDINGS 11 On January 26, 2015, Plaintiff applied for Title XVI supplemental security 12 income benefits alleging a disability onset date of January 26, 2015. Tr. 129, 23013 35. The application was denied initially, and on reconsideration. Tr. 151-59; Tr. 14 163-73. Plaintiff appeared before an administrative law judge (ALJ) on February 15 1, 2018. Tr. 62-87. On June 13, 2018, the ALJ denied Plaintiff’s claim. Tr. 1316 30. 17 At step one of the sequential evaluation process, the ALJ found Plaintiff has 18 not engaged in substantial gainful activity since January 26, 2015. Tr. 19. At step 19 two, the ALJ found that Plaintiff has the following severe impairments: 20 malingering; history of post-traumatic stress disorder (PTSD); history of attention 2 ORDER - 6 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.852 Page 7 of 31 1 deficit hyperactivity disorder (ADHD); anxiety disorder; personality disorder; 2 history of autism spectrum disorder; chronic lumbar sprain; right knee 3 patellofemoral syndrome; and obesity. Tr. 19. At step three, the ALJ found 4 Plaintiff does not have an impairment or combination of impairments that meets or 5 medically equals the severity of a listed impairment. Tr. 19. The ALJ then 6 concluded that Plaintiff has the RFC to perform light work with the following 7 limitations: 8 9 10 11 12 [H]e is able to stand and walk for 5 hours in an 8-hour day, and sit for 6 of 8 hours; he can lift and/or carry 20 pounds occasionally and 10 pounds frequently; he is able to perform unskilled, repetitive, routine work; he cannot have contact with the public; can have occasional contact with supervisors and co-workers; he will be off-task at work up to 5% of the time, but still meet minimum production requirements; he will be absent from work 6 times per year; he can occasionally stoop, squat, crouch, crawl, kneel, as well as climb ramps and stairs; he can never climb ladders, ropes, or scaffolds. 13 Tr. 21. 14 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 25. At 15 step five, the ALJ found that, considering Plaintiff’s age, education, work 16 experience, RFC, and testimony from the vocational expert, there were jobs that 17 existed in significant numbers in the national economy that Plaintiff could perform, 18 such as marker, assembler production, and inspector hand packager. Tr. 25. 19 Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the 20 2 ORDER - 7 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.853 Page 8 of 31 1 Social Security Act, from the date of the application through the date of the 2 decision. Tr. 26. 3 On March 29, 2019, the Appeals Council denied review of the ALJ’s 4 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 5 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 6 7 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 8 him supplemental security income benefits under Title XVI of the Social Security 9 Act. He raises the following issues for review: 10 1. Whether the ALJ properly evaluated the medical opinion evidence; 11 2. Whether the ALJ conducted a proper step-two analysis; 12 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 13 4. Whether the ALJ properly evaluated lay witness evidence; and 14 5. Whether the assessed RFC is consistent with disability. 15 ECF No. 14 at 2. 16 DISCUSSION 17 A. Medical Opinion Evidence 18 Plaintiff contends the ALJ improperly weighed the medical opinions of 19 examining physicians R. A. Cline, Psy. D., and Thomas Genthe, Ph.D., 20 nonexamining physician R. Renee Eisenhauer, Ph.D., treating therapist Dave 2 ORDER - 8 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.854 Page 9 of 31 1 Hulslander, M.S., and the State agency psychological consultants. ECF No. 14 at 2 6-17. 3 There are three types of physicians: “(1) those who treat the claimant 4 (treating physicians); (2) those who examine but do not treat the claimant 5 (examining physicians); and (3) those who neither examine nor treat the claimant 6 but who review the claimant’s file (nonexamining or reviewing physicians).” 7 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001). “Generally, a 8 treating physician’s opinion carries more weight than an examining physician’s, 9 and an examining physician’s opinion carries more weight than a reviewing 10 physician’s.” Id. “In addition, the regulations give more weight to opinions that 11 are explained than to those that are not, and to the opinions of specialists 12 concerning matters relating to their specialty over that of nonspecialists.” Id. 13 (citations omitted). 14 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 15 reject it only by offering “clear and convincing reasons that are supported by 16 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 17 “However, the ALJ need not accept the opinion of any physician, including a 18 treating physician, if that opinion is brief, conclusory and inadequately supported 19 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 20 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 2 ORDER - 9 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.855 Page 10 of 31 1 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 2 may only reject it by providing specific and legitimate reasons that are supported 3 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 4 F.3d 821, 830-31 (9th Cir. 1995)). 5 1. Dr. Cline & Dr. Genthe 6 Dr. Cline performed two psychiatric evaluations. See Tr. 552-56; Tr. 561- 7 66. In November 2014, she diagnosed Plaintiff with PTSD and personality 8 disorder with features of borderline and avoidant personality disorders. Tr. 552. 9 She opined no marked limitations, but opined moderate limitations in the following 10 areas: understanding, remembering, and persisting in tasks by following detailed 11 instructions; performing activities within a schedule; maintaining regular 12 attendance/punctuality without special supervision; making simple work-related 13 decisions; being aware of normal hazards and taking precautions; asking simple 14 questions/requesting assistance; communicating and performing effectively in a 15 work setting; completing a normal workday/workweek; maintaining appropriate 16 behavior in a work setting; and setting goals and planning independently. Tr. 554. 17 She concluded Plaintiff would be impaired for six months. Tr. 555. 18 In July 2017, Dr. Cline performed a second evaluation. Tr. 561-66. She 19 again diagnosed PTSD and personality disorder (with features of cluster B 20 disorders), but also diagnosed Plaintiff with major depressive disorder (severe, 2 ORDER - 10 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.856 Page 11 of 31 1 chronic) and unspecified anxiety related disorder. Tr. 563. She noted his 2 maladaptive personality traits and depressed mood were of marked severity and his 3 anxiety and trauma related symptoms were of moderate severity. Tr. 563. In 4 contrast with her 2014 evaluation, she found his combined symptoms would cause 5 marked impairments in communicating and performing effectively and 6 maintaining appropriate behavior in a work setting. Tr. 564. Her findings as to his 7 moderate impairments otherwise remained the same. Tr. 564. She opined he 8 needed treatment focused on his personality characteristics, concurrent with 9 medication, and that his marked mental impairments would likely persist for 9-12 10 months. Tr. 564. 11 Dr. Genthe performed a psychiatric evaluation in July 2015. Tr. 317-26. He 12 similarly diagnosed Plaintiff with persistent depressive disorder with intermittent 13 major depressive episodes, PTSD, personality disorder with borderline features, 14 and alcohol use disorder (in sustained remission). Tr. 319. He noted Plaintiff 15 presented with social anxiety, Tr. 320, and an anxious and depressed affect. Tr. 16 321. He opined marked limitations in the following basic work activities: asking 17 simple questions or requesting assistance; communicating and performing 18 effectively in a work setting; maintaining appropriate behavior in a work setting; 19 and completing a normal workday/workweek. Tr. 319-20. He opined moderate 20 limitations in understanding, remembering, and persisting in tasks by following 2 ORDER - 11 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.857 Page 12 of 31 1 detailed instructions; adapting to changes in a work setting; and setting realistic 2 goals and planning independently. Tr. 319-20. He noted Plaintiff had average 3 reasoning abilities on verbal tasks, but significantly lower (borderline range) non4 verbal reasoning abilities and a limited ability (borderline range) to sustain 5 attention, concentrate, exert mental control, and process simple visual material 6 without making errors. Tr. 320. He also noted Plaintiff had poor insight on 7 clinical issues, poor decision-making skills regarding treatment, and poor social 8 cognition. Tr. 322. Overall, he determined Plaintiff’s combined symptoms 9 “continue to impact his daily activities and level of functioning” so that he would 10 be “unlikely to function adequately in a work setting” without better management 11 of his symptoms. Tr. 320. Dr. Genthe concluded “no less than 6-9 months” would 12 be needed to address Plaintiff’s impairments. Tr. 320. 13 The ALJ gave little weight to the opinions of Dr. Cline and Dr. Genthe. Tr. 14 24. Because the doctors’ opinions were contradicted by those of the state 15 psychological consultants, the ALJ was required to provide specific and legitimate 16 reasons for rejecting the opinions. See Bayliss, 427 F.3d at 1216. 17 Here, the ALJ found the opinions were inconsistent with the “apparent 18 improvement” in Plaintiff’s symptoms. Tr. 24. The effectiveness of medication 19 and treatment is a relevant factor in determining the severity of a claimant’s 20 symptoms. 20 C.F.R. § 416.929(c)(3); see Warre v. Comm’r of Soc. Sec. Admin., 2 ORDER - 12 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.858 Page 13 of 31 1 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively controlled with 2 medication are not disabling for purposes of determining eligibility for benefits). 3 The ALJ noted Plaintiff reported a positive response to medication on several 4 occasions. Tr. 22. In support of her finding, she cited two records indicating 5 Plaintiff reported Zoloft helped “stabilize” him in July 2015, Tr. 317, and that “he 6 [was] doing better on 100 mg Zoloft” in November 2016. Tr. 576. She cited a 7 third record, however, it fails to support her finding; the record indicates Plaintiff 8 utilizes trazadone and a CPAP machine to help him sleep, but also notes he “wakes 9 up in the middle of the night with massive headaches,” he cannot wear his CPAP 10 machine throughout the night, and “he has been on multiple sleep meds without 11 success.” Tr. 572. Additionally, the ALJ emphasized Plaintiff stopped attending 12 therapy because his symptoms had improved. Tr. 23 (citing Tr. 659). In fact, the 13 treatment note referenced states, “Client reports he needs to take a break from 14 therapy to get his ‘mind clear’ he reports he thinks taking a break and coming back 15 will be more effective helping him deal with his depression issues.” Tr. 659. 16 Notes from two preceding sessions state that Plaintiff “does not feel like therapy is 17 helpful…he reports he needs to take a break the[n] come back in a few months 18 when he feels ready to address his struggles,” Tr. 661, and “client is struggling to 19 make progress toward goals.” Tr. 663. Accordingly, while Plaintiff denied having 20 suicidal thoughts and reported some improvement (started to be more self2 ORDER - 13 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.859 Page 14 of 31 1 sufficient engaging in daily routine, healthier eating, and more socialization) 2 before halting treatment temporarily, both he and his therapist appeared to agree 3 that therapy had not improved his symptoms as the ALJ concluded. 4 Although two of the reports cited indicate Plaintiff reported some 5 improvement in his anxiety/depression symptoms with Zoloft, the ALJ relied on 6 these limited statements to conclude more broadly that Plaintiff’s condition overall 7 improved with treatment. Tr. 23. The ALJ’s conclusion of general improvement 8 is not supported by substantial evidence. Observations of improvement must be 9 “read in context of the overall diagnostic picture” of an individual, and 10 improvement in some symptoms does not indicate nondisability under the Social 11 Security Act. Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (quoting 12 Holohan, 246 F.3d at 1205). The ALJ is not permitted to “cherry pick” from 13 mixed evidence to support a denial of benefits. Garrison v. Colvin, 759 F.3d 995, 14 1017 n.23 (9th Cir. 2014). Although Plaintiff’s symptoms may have subsided with 15 medication, the record shows his overall condition was not improving with 16 treatment. See Tr. 342, 353 (Jan. 29, 2015 – reported anxiety was worsening and a 17 PHQ-9 score of 18); Tr. 340 ( Feb. 10, 2015 – reported symptoms are somewhat 18 relieved by meds, but after several days he is an “emotional roller coaster” again); 19 Tr. 473-74 (March 1, 2015 – admitted into crisis bed for stabilization); Tr. 466 20 (March 23, 2015 – reported passing suicidal thoughts and a PHQ-9 score of 18); 2 ORDER - 14 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.860 Page 15 of 31 1 Tr. 454 (June 16, 2015 – forlorn, self-defeating, negative, hopeless mood and 2 affect, and a PHQ-9 score of 20); Tr. 433 (Oct. 26, 2015 – client “stuck between 3 being tired of waiting for SSI Disability and being fed up with living in abject 4 poverty;” PHQ-9 score of 17); Tr. 407 (March 8, 2016 – despondent mood and flat 5 affect, discouraged at lack of progress); Tr. 397 (May 5, 2016 – lack of progress 6 with depression symptoms and a PHQ-9 score of 16); Tr. 488-91 (July 26, 2016 – 7 admitted to crisis bed for stabilization); Tr. 701 (Sept. 29, 2016 – PHQ-9 score of 8 17); Tr. 698 (Dec. 20, 2016 – PHQ-9 score of 19); Tr. 687 (Feb. 7, 2017 – 9 presented as long-term patient due to lack of progress; PHQ-9 score of 14); Tr. 667 10 (June 19, 2017 – not making progress toward goals); Tr. 569-70 (Sept. 20, 2017 – 11 difficulty sleeping worsening, meds eventually fail to help, anxious and depressed). 12 Consequently, the ALJ’s general conclusion of “apparent improvement” with 13 treatment was not supported by substantial evidence. This was not a specific and 14 legitimate reason to reject the opinions. 15 The ALJ also found the opinions of Dr. Cline and Dr. Genthe were “not 16 consistent with the claimant’s reports to his therapist.” Tr. 24. In particular, she 17 referenced Plaintiff’s initial assessment note for therapy where he had reported “no 18 one would hire him, he has no skills, he has no people skills, he has no idea what 19 kind of work he could do.” Tr. 659. “The ALJ must do more than state 20 conclusions. [She] must set forth [her] own interpretations and explain why they, 2 ORDER - 15 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.861 Page 16 of 31 1 rather than the doctors’ are correct.” Garrison, 759 F.3d at 1012 (internal citations 2 omitted); Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th 3 Cir. 1999) (“[C]onclusory reasons will not justify an ALJ’s rejection of a medical 4 opinion.”). Here, the ALJ failed to include any explanation as to how the single 5 statement made by Plaintiff to his treating therapist contradicts the opinions and 6 specific limitations opined by Dr. Genthe and Dr. Cline. The ALJ’s conclusory 7 statement does not constitute a specific and legitimate reason to reject the opinions. 8 Finally, the ALJ found Plaintiff’s “cessation of medications treatment” was 9 inconsistent with the doctors’ opinions. Tr. 24. A medical opinion may be 10 rejected if it is unsupported by medical findings, Bray, 554 F.3d at 1228; Thomas 11 v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 12 1144, 1149 (9th Cir. 2001), or unsupported by the record as a whole. Batson v. 13 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ noted 14 that Plaintiff testified he stopped taking his prescribed medication about a year ago 15 (i.e., around February 2017). Tr. 22 (citing Tr. 70). When asked why he stopped 16 taking the medication, the ALJ noted he had varied responses, including “he did 17 not like mind altering medications,” “it was hard to take medications due to 18 forgetfulness,” and “the medication did not work.” Tr. 22 (citing Tr. 69-71). The 19 ALJ also noted that Plaintiff admitted he deliberately stopped taking medications 20 because he would rather feel miserable. Tr. 23. Throughout her discussion, the 2 ORDER - 16 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.862 Page 17 of 31 1 ALJ did not consider Plaintiff’s reports of side-effects. See Tr. 336, 339 (Zoloft 2 gives him headaches); Tr. 572 (Trazadone gives him headaches). She concluded 3 Plaintiff’s cessation of prescribed medication was inconsistent with the limitations 4 opined by Dr. Genthe and Dr. Cline. Tr. 24. 5 It is unclear in what way the ALJ found Plaintiff’s “cessation of medication” 6 to be inconsistent with the medical opinions. To the extent she found 7 inconsistency due to non-compliance with recommended or prescribed treatment, 8 such a finding is not a specific or legitimate reason to discount the opinions. See 9 e.g., Roland v. Colvin, 2016 WL 3912015 (E.D. Cal. July 18, 2016) (consistent 10 non-compliance with medications was not specific and legitimate reason to give 11 only limited weight to medical opinion); Green v. Astrue, 2011 WL 782390 (C.D. 12 Cal. Feb. 25, 2011) (reported non-compliance does not constitute a specific and 13 legitimate reason for rejecting opinion of treating physician where symptom of 14 significant mental health problem); c.f., Brown v. Barnhart, 390 F.3d 535, 540-541 15 (8th Cir. 2004) (holding that the ALJ properly discounted treating physician’s 16 opinion where record showed the Plaintiff was non-compliant with prescribed 17 treatment without good reason). To the extent she found Plaintiff’s cessation in 18 medication to be synonymous with improvement, that neither is a specific and 19 legitimate reason. As discussed supra, Plaintiff’s reports that his medication 20 helped mitigate his symptoms did not support an overall conclusion that his 2 ORDER - 17 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.863 Page 18 of 31 1 conditions had generally improved to globally contradict the doctors’ opined 2 limitations. Moreover, to the extent the medications mitigated particular 3 symptoms related to his depression or anxiety, the ALJ did not explain where the 4 contradictions lie between the mitigated symptoms and the limitations opined by 5 Dr. Genthe and Dr. Cline. The ALJ did not address that Dr. Cline acknowledged 6 Plaintiff was not taking medication in both her evaluations, Tr. 552, 562, and that 7 Dr. Genthe noted Plaintiff’s “current medication management regimen does not 8 appear to be adequately targeting interfering symptoms,” and recommended “a 9 psychiatric consultation to review his regimen and doses for effectiveness.” Tr. 10 320. The ALJ failed to set forth a detailed and thorough summary of the facts and 11 conflicting clinical evidence to support her assertion that Plaintiff’s cessation of 12 medication was inconsistent with the doctors’ opinions; thus, this was not a 13 specific and legitimate reason to reject them. 14 Overall, the ALJ did not provide specific and legitimate reasons supported 15 by substantial evidence to discount the opinions of the examining doctors, Dr. 16 Cline and Dr. Genthe, in favor of the State agency psychological consultants. 17 2. Dr. Eisenhauer 18 In November 2014, Dr. Eisenhauer reviewed the medical report of Dr. Cline 19 (2014 evaluation), and two doctors whose reports were included in Plaintiff’s prior 20 case only. Tr. 557. She determined Dr. Cline’s diagnoses and opined limitations 2 ORDER - 18 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.864 Page 19 of 31 1 were supported by the medical evidence. Tr. 557. In August 2015, Dr. Eisenhauer 2 again reviewed the medical report of Dr. Cline (2014 evaluation), as well as that of 3 Dr. Genthe (2015 evaluation). Tr. 327 (duplicate at Tr. 559). She found both 4 doctors’ diagnoses were supported by the medical evidence. Tr. 330. She 5 determined the severity and functional limitations were supported by the medical 6 evidence, except for Dr. Genthe’s finding that Plaintiff had a marked limitation in 7 his ability to ask simple questions or request assistance; Dr. Eisenhauer 8 determined, based on the evidence, Plaintiff would only have a mild limitation in 9 that area. Tr. 330. 10 It is unclear how much weight the ALJ gave to Dr. Eisenhauer’s opinions. 11 While it appears the ALJ gave great weight to Dr. Eisenhauer’s statement that 12 Plaintiff “reports improvement in his condition,” and “spends time with friends,” 13 as a result of his therapy and medication, Tr. 23; Tr. 559, she ultimately gave “little 14 weight to the DSHS evaluations,” including Dr. Eisenhauer’s reviews. Tr. 24. The 15 statement referenced by the ALJ is contained in Dr. Eisenhauer’s second review. 16 Tr. 559. As elucidated by Plaintiff, the ALJ misinterpreted the review to have 17 generally concluded that Dr. Cline’s and Dr. Genthe’s opined limitations were not 18 supported by medical evidence. Tr. 23. However, the record shows Dr. 19 Eisenhauer found only that there was insufficient medical evidence to support the 20 doctors’ assessed limitation regarding Plaintiff’s ability to ask simple questions or 2 ORDER - 19 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.865 Page 20 of 31 1 request assistance. Tr. 559. The ALJ provides the same three reasons, i.e., 2 inconsistency with Plaintiff’s improvement with treatment, inconsistency with 3 Plaintiff’s reports to his therapist, and inconsistency with Plaintiff’s cessation of 4 medication, to reject Dr. Eisenhauer’s reviewing opinions. Tr. 24. As discussed 5 above, those reasons do not constitute specific and legitimate reasons to reject the 6 opinions. 7 3. Other Medical Opinions 8 The ALJ also rejected the opinion of treating therapist Dave Hulslander, 9 who is considered a nonacceptable medical source, see 20 C.F.R. § 416.902 10 (2011)3 (citing to 20 C.F.R. § 416.913(a)) (acceptable medical sources are licensed 11 physicians, licensed or certified psychologists, licensed optometrists, licensed 12 podiatrists, and qualified speech-language pathologists)), finding it was 13 inconsistent with Plaintiff’s improvement with treatment and was inconsistent with 14 the assessments of the State psychological consultants, whose opinions she gave 15 16 3 This section was amended in 2017, effective March 27, 2017, and in 2018, 17 effective October 15, 2018. See 20 C.F.R. § 416.902. Plaintiff filed his claim 18 before March 27, 2017, and the Court applies the regulation in effect at the time 19 Plaintiff’s claim was filed. See 20 C.F.R. § 416.902 (noting changes apply only for 20 claims filed on or after March 27, 2017). 2 ORDER - 20 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.866 Page 21 of 31 1 great weight. Tr. 24. She gave great weight to the consultants’ opinion that 2 Plaintiff’s condition had not worsened since the first ALJ’s decision. Tr. 24. As 3 discussed at length above, Plaintiff’s “apparent improvement” is not supported by 4 substantial evidence and therefore is not a germane reason to reject Mr. 5 Hulslander’s opinion. Ghanim, 763 F.3d at 1161 (“An ALJ may reject the opinion 6 of a nonacceptable medical source by giving reasons germane to the opinion.”). 7 Because the case is remanded for the ALJ to reweigh the medical opinion 8 evidence, this opinion should be reweighed as well. 9 10 B. Step Two Analysis Plaintiff contends the ALJ erred by adopting the prior ALJ’s findings of 11 medically determinable impairments without properly reviewing the new evidence. 12 ECF No. 14 at 4. At step two of the sequential process, the ALJ must determine 13 whether the claimant suffers from a “severe” impairment, i.e., one that 14 significantly limits his physical or mental ability to do basic work activities. 20 15 C.F.R. § 416.920(c). When a claimant alleges a severe mental impairment, the 16 ALJ must follow a two-step “special technique” at steps two and three. 20 C.F.R. 17 § 416.920a. First, the ALJ must evaluate the claimant’s “pertinent symptoms, 18 signs, and laboratory findings to determine whether [he or she has] a medically 19 determinable impairment.” 20 C.F.R. § 416.920a(b)(1). Second, the ALJ must 20 assess and rate the “degree of functional limitation resulting from [the claimant’s] 2 ORDER - 21 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.867 Page 22 of 31 1 impairments” in four broad areas of functioning: activities of daily living; social 2 functioning; concentration, persistence or pace; and episodes of decompensation. 3 20 C.F.R. § 416.920a(b)(2)-(c)(4). Functional limitation is measured as “none, 4 mild, moderate, marked, and extreme.” 20 C.F.R. § 416.920a(c)(4). If limitation 5 is found to be “none” or “mild,” the impairment is generally considered to not be 6 severe. 20 C.F.R. § 416.920a(d)(1). If the impairment is severe, the ALJ proceeds 7 to determine whether the impairment meets or is equivalent in severity to a listed 8 mental disorder. 20 C.F.R. § 416.920a(d)(2)-(3). 9 Here, the ALJ found the following severe impairments, which are now 10 disputed by Plaintiff: malingering; history of PTSD; and history of ADHD. Tr. 19 11 (additional undisputed severe impairments included anxiety disorder, personality 12 disorder, history of autism spectrum disorder, chronic lumbar sprain, right knee 13 patellofemoral syndrome, and obesity). The ALJ noted that she adopted the severe 14 impairments and the RFC from the prior decision (rendered on Nov. 25, 2014) 15 after she determined that the new evidence did not show “changed circumstance 16 material to the determina[tion] of disability.” Tr. 24. Plaintiff argues that the ALJ 17 erroneously relied on a diagnosis of malingering from evidence not in the record 18 while rejecting opinions from examining doctors who indicated Plaintiff’s 19 participation minimized the likelihood that he was malingering. ECF No. 14 at 420 5; ECF No. 16 at 3-4. Plaintiff asserts that the ALJ’s error was harmful because it 2 ORDER - 22 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.868 Page 23 of 31 1 had a “clear and detrimental impact on the credibility analysis.” ECF No. 14 at 6. 2 The Court finds Jones v. Berryhill instructive. No. C16-5911-RSM, 2017 3 WL 3614252, at *7 (W.D. Wash. Aug. 23, 2017). In Jones, the ALJ included 4 malingering as a severe medically determinable impairment, as was done here. Id. 5 The court in Jones noted: 6 It is unclear why the ALJ included malingering as a severe impairment at step two. “The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), at 726 (5th ed. 2013). By its terms, malingering would seem to be the opposite of a severe impairment, which is defined as a medically determinable impairment which significantly limits the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). 7 8 9 10 11 12 13 Id. But, the court in Jones determined, “even if the ALJ mistakenly included 14 malingering as a severe impairment at step two, there is significant evidence of 15 malingering in the record which the ALJ was entitled to consider in evaluating Mr. 16 Jones’ symptom testimony and the medical evidence.” Id. Despite its finding that 17 there was substantial evidence of malingering,4 the court in Jones instructed the 18 19 4 The substantial affirmative evidence of malingering determined by the ALJ 20 included: statements by Matthew A. Radel, PAC, that Mr. Jones’ medical record 2 ORDER - 23 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.869 Page 24 of 31 1 ALJ to clarify her finding with respect to malingering on remand, particularly in 2 light of her reconsideration of the medical opinion evidence. Id. 3 Here, the Court similarly finds reconsideration of the ALJ’s finding on 4 malingering appropriate on remand. While throughout her opinion the ALJ alludes 5 to evidence that Plaintiff is exaggerating symptoms for secondary gain, the 6 evidence that the ALJ relies upon is not in the instant record and, thus not able to 7 be reviewed by the Court. This renders it impossible for the Court to review the 8 legal sufficiency of the ALJ’s finding. Moreover, the ALJ’s conclusion must be 9 10 suggests malingering type behavior and that his behavior during the visit suggested 11 more of a malingering etiology and narcotic abuse potential; significant 12 manipulative narcotic and benzodiazepine seeking behavior throughout the record, 13 including numerous ER visits for various accidents and ailments resulting in 14 unremarkable physical examination findings, as well as multiple accounts of 15 having simultaneous pain medication prescriptions with different providers; 16 characterizations by several providers of Mr. Jones as being heavily addicted to 17 pain medication and engaging in manipulative drug seeking behavior; and Mr. 18 Jones’ own acknowledgment during the hearing that he has fabricated injuries in 19 order to obtain pain medication. See Jones, No. C16-5911-RSM, 2017 WL 20 3614252, at *7. 2 ORDER - 24 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.870 Page 25 of 31 1 clarified upon her reevaluation of the medical opinion evidence, particularly in 2 light of Dr. Cline’s statements that Plaintiff’s “excellent effort and cooperation 3 with the task minimizes the likelihood that he is malingering at this time,” Tr. 553, 4 556, and Dr. Genthe’s statements that Plaintiff “appear[ed] relatively genuine in 5 his responses,” and “appeared attentive and interested in doing his best,” so that 6 test results were deemed a “valid assessment of his cognitive functioning.” Tr. 7 321; see also Tr. 320 (Dr. Genthe opining Plaintiff has problematic personality 8 traits that limit treatment interventions); Tr. 563 (Dr. Cline noting presence of 9 personality traits of cluster B and cluster C personality disorders). 10 Plaintiff also asserts the ALJ erred by listing his PTSD as a historical 11 impairment when it was diagnosed by both Dr. Genthe and Dr. Cline and 12 concurred with by Dr. Eisenhauer. ECF No. 14 at 5; see Tr. 553 (diagnosing 13 PTSD in Nov. 2014); Tr. 319 (diagnosing PTSD in July 2015); Tr.563 (symptoms 14 consistent with diagnosis of PTSD in July 2017); Tr. 557, 559 (diagnosis of PTSD 15 found to be supported by medical evidence in Nov. 2014 and Aug. 2015). The 16 ALJ should address this issue on remand. 17 C. Plaintiff’s Symptom Claims 18 Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 19 discrediting his symptom claims. ECF No. 14 at 18-21; ECF No. 16 at 8-10. An 20 ALJ engages in a two-step analysis to determine whether to discount a claimant’s 2 ORDER - 25 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.871 Page 26 of 31 1 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 2 “First, the ALJ must determine whether there is objective medical evidence of an 3 underlying impairment which could reasonably be expected to produce the pain or 4 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 5 “The claimant is not required to show that [his] impairment could reasonably be 6 expected to cause the severity of the symptom [he] has alleged; [he] need only 7 show that it could reasonably have caused some degree of the symptom.” Vasquez 8 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim, 763 F.3d at 1163 (citations omitted). General findings are 13 insufficient; rather, the ALJ must identify what symptom claims are being 14 discounted and what evidence undermines these claims. Id. (quoting Lester, 81 15 F.3d at 834; Thomas, 278 F.3d at 958 (requiring the ALJ to sufficiently explain 16 why it discounted claimant’s symptom claims)). “The clear and convincing 17 [evidence] standard is the most demanding required in Social Security cases.” 18 Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 19 F.3d 920, 924 (9th Cir. 2002)). 20 2 ORDER - 26 Case 1:19-cv-03116-MKD 1 ECF No. 17 filed 05/12/20 PageID.872 Page 27 of 31 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 3 duration, frequency, and intensity of pain or other symptoms; (3) factors that 4 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; (5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; (6) any measures other than 8 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 9 any other factors concerning an individual’s functional limitations and restrictions 10 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 11 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 12 individual’s record,” “to determine how symptoms limit ability to perform work13 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 Here, the ALJ found Plaintiff’s medically determinable impairments could 15 reasonably be expected to produce some of the symptoms alleged, but Plaintiff’s 16 statements concerning the intensity, persistence and limiting effects of these 17 symptoms were not entirely consistent with the medical evidence and other 18 evidence in the record. Tr. 24. The ALJ’s evaluation of Plaintiff’s symptom 19 claims and the resulting limitations relies in part on the ALJ’s assessment of the 20 medical evidence. Having determined a remand is necessary to readdress the 2 ORDER - 27 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.873 Page 28 of 31 1 medical source opinions, any reevaluation must necessarily entail a reassessment 2 of Plaintiff’s subjective symptom claims. Thus, the Court need not reach this issue 3 and on remand the ALJ must also carefully reevaluate Plaintiff’s symptom claims 4 in the context of the entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th 5 Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we 6 decline to reach [plaintiff’s] alternative ground for remand.”). 7 D. Other Assignments of Error 8 Plaintiff also challenges the ALJ’s evaluation of the lay witness testimony 9 and argues that the ALJ’s adopted RFC equates to disability. ECF No. 14 at 3-4, 10 17-18; ECF No. 16 at 2-3, 11. Because this case is remanded for the ALJ to 11 reconsider the medical opinion evidence, step two findings, and Plaintiff’s 12 symptom testimony, and because these challenges are influenced by those findings, 13 the Court declines to address these specific assignments of error in this Order. 14 E. Remand 15 Plaintiff urges this Court to fully credit the challenged evidence in this case. 16 ECF No. 14 at 13; ECF No. 16 at 7. “The decision whether to remand a case for 17 additional evidence, or simply to award benefits is within the discretion of the 18 court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. 19 Heckler, 761 F.2d 530 (9th Cir. 1985)). When the Court reverses an ALJ’s 20 decision for error, the Court “ordinarily must remand to the agency for further 2 ORDER - 28 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.874 Page 29 of 31 1 proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. 2 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the proper course, except in rare 3 circumstances, is to remand to the agency for additional investigation or 4 explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 5 Cir. 2014). However, in a number of Social Security cases, the Ninth Circuit has 6 “stated or implied that it would be an abuse of discretion for a district court not to 7 remand for an award of benefits” when three conditions are met. Garrison, 759 8 F.3d at 1020 (citations omitted). Under the credit-as-true rule, where (1) the record 9 has been fully developed and further administrative proceedings would serve no 10 useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 11 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 12 improperly discredited evidence were credited as true, the ALJ would be required 13 to find the claimant disabled on remand, the Court will remand for an award of 14 benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even where the 15 three prongs have been satisfied, the Court will not remand for immediate payment 16 of benefits if “the record as a whole creates serious doubt that a claimant is, in fact, 17 disabled.” Garrison, 759 F.3d at 1021. 18 Here, further proceedings are necessary as the record presents outstanding 19 conflicts to resolve. For instance, even if the Court were to fully credit every 20 opinion in the record stating Plaintiff is incapable of work, the record contains 2 ORDER - 29 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.875 Page 30 of 31 1 other opinions from Dr. Lewis, Tr. 123-25, and Dr. Kesler, Tr. 141-42, who opined 2 Plaintiff had functional limitations consistent with light work; the ALJ must 3 resolve conflicts in the medical evidence on remand. Moreover, the ALJ must 4 reassess the findings at step two and the credibility of Plaintiff’s subjective 5 symptom testimony. On remand, the ALJ is instructed to reconsider the medical 6 evidence and take testimony from a medical expert if needed, reconsider the 7 medically determinable impairments at step two, reweigh Plaintiff’s symptom 8 allegations, reweigh the medical opinion evidence, reweigh the lay opinion 9 evidence, and conduct a new sequential analysis. 10 11 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 12 ALJ’s decision is not supported by substantial evidence and free of harmful legal 13 error. Accordingly, IT IS HEREBY ORDERED: 14 1. The District Court Executive is directed to substitute Andrew M. Saul as 15 the Defendant and update the docket sheet. 16 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 17 3. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 18 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 19 REVERSING and REMANDING the matter to the Commissioner of Social 20 2 ORDER - 30 Case 1:19-cv-03116-MKD ECF No. 17 filed 05/12/20 PageID.876 Page 31 of 31 1 Security for further proceedings consistent with this recommendation pursuant to 2 sentence four of 42 U.S.C. § 405(g). 3 The District Court Executive is directed to file this Order, provide copies to 4 counsel, and CLOSE THE FILE. 5 DATED May 12, 2020. 6 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 31

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