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How Gaps in Medical Treatment Can Result in an Unfavorable Decision

Last week, I wrote a post describing a case that will be denied because of my client’s poorly worded testimony.  Today, I want to continue this theme and talk about a far more common basis for hearing denials – gaps in medical treatment or absence of medical treatment.

I save hearing decisions in the cases I try.  Fortunately I usually choose decent cases and I don’t have too many unfavorables, but not every case turns out to be a winner.  Interestingly, when looking at the unfavorables as a group, certain trends emerged.  Perhaps the most common thread had to do with gaps and inconsistence in medical treatment.

Here is the actual wording from one such decision in a case involving a woman with depression and anxiety:

Although the claimant’s anxiety is severe, she has had no significant amount of mental health treatment.  Even though she has been in the Atlanta area, she has had no psychiatric treatment.  Had she obtained treatment, her anxiety would not be severe.  Her husband is working, so there is no apparent reason she could not seek mental health treatment if she chooses to do so.

In this particular case, the medical record was not particularly strong and the claimant’s treating doctor was unwilling to provide us with a completed functional capacity form.  I find it interesting that the judge would focus on what was not there, rather than what was there.  Could there be legitimate reasons why an individual would not seek mental health treatment?  Is it fair to assume that the husband’s insurance would cover psychological or psychiatric treatment, or that the deductibles would be affordable?

I think that the lesson to learn from cases like this relates to the need for every claimant to build a “paper trail” of medical treatment records.  Judges expect you to see your doctor regularly and to seek specialized help when necessary.  If you don’t have a lot of money,you need to explore all options – local emergency rooms, public hospitals, free clinics.  I think that the days are over when a claimant can win a hearing with a medical record that is less than an inch thick.

I am certain that there are many deserving claimants out there who truly are disabled, but who will be denied because the medical record is sparse.  This may not be fair, but this is how the system works.

How Poorly Presented Testimony Can Result in an Unfavorable Decision

Although I generally write about successful cases, I think that you can also learn from cases that don’t go so well.  I tried a case recently that turned out to be snakebit.  Just about everything that could have gone wrong did go wrong and this is one of the few cases where a judge announced in open court that he did not find my client believeable or credible at all.

Interestingly, my client does have significant medical problems and a long and solid work history of over 20 years with the same employer.  He is also well educated with a college degree and he earned a very good living in the accounting field.  After he stopped working, he made at least three attempts to return to work but was unable to do so because of significant pain.  He has a clear diagnosis of an orthopedic problem and his treating doctor is recommending multiple joint replacements.  All in all, this gentleman meets the profile of what I would consider to be a viable case.  What, then, went wrong?

Firstly, my client did not present himself as a person who was searching for relief.  He last worked in 2005 and thereafter he had only two visits to an orthopedic surgeon.  Although his doctor stated during both of these visits that surgery was needed, my client did not pursue treatment.  Instead, he stayed at home and sought to control his pain with over the counter medications.

I think that the judge questioned my client’s allegations of pain – there was no attempt to pursue physical therapy, there was no course of pain management, and my client was very vague about what he did during the many months that he was at home.  I believe that the judge saw my client as a man who sat at home watching TV, making no effort to explore options that might improve his condition.

When the question was asked why he had not had his surgery, my client responded that he was “waiting for the result of this hearing” before having surgery.  This was clearly not a good answer.  The implication of this answer is that my client could have had the surgery and pursued a recovery but instead, he decided to wait at home and collect Social Security.  This demonstrates the wrong attitude.

Although I tried to rehabilitate my client by getting him to testify about his fear of surgery and possible complications, the judge remained focused on my client’s linkage of his disability hearing to his surgical options.  Social Security judges cannot hold it against a claimant for refusing to undergo invasive surgery but a judge can hold it against a claimant whose decision not to pursue surgery was motivated by a desire to collect from SSA.

My client tried to raise the issue of money – that surgery was expensive, but the judge shot that down by pointing out that my client had very good insurance coverage through his wife and that his out of pocket cost for surgery was nominal.

The judge did not even raise an issue that I saw in the record – namely that my client smokes 3 packs of cigarettes a day, which means that (1) he spends money on a harmful habit that could otherwise be applied to his out of pocket medical costs; (2) he lowers his chances at a successful surgical outcome as smokers frequently experience longer recovery times and less favorable results; and (3) there was no suggestion in the record that my client is trying to stop smoking.

The judge’s disgust with my client was very evident, and the judge did not even go through the exercise of asking any questions of the vocational witness.  I expect that the decision will be an unfavorable decision based on a finding that my client lacked credibility.

What could my client have done differently?

First and foremost, he should have made some good faith effort to seek relief from his symptoms.  If he was not ready for surgery – and most judges understand if you hold off on major surgery that does not guarantee results – he should have sought pain management treatment or physical therapy to strengthen himself.

My client could have used his condition as a diabetic and as a smoker to improve his chances.  Diabetics often have trouble recovering from surgery and he could have referenced his diabetes as a reason for not wanting surgery.   Had there been evidence that he was trying to stop smoking he could have referenced his difficulty in quitting despite a sincere effort as another reason to delay surgery.

Finally, my client should have presented himself as a person who was applying for disability because he was not able to work despite a true desire to support himself and his family.  Workers do not leave high paying jobs with pensions and benefits to sit at home and collect Social Security.  He should have made it clear that Social Security was his last resort and that he would return to work immediately if his condition warrented.

Alas, even cases with potential do not go as planned.  I think that my client is an example of a person who very well might be unable to work, but he presented himself so unconvincingly that he will not receive benefits.

Can I File for Disability if I am Working 20 Hours Per Week?

A common question that I see has to do with part time work.  As I have written previously, I am not a big fan of part time work, as you will see from my answer to this question that I recieved by email:

I have had fibromyalgia for many years, an autoimmune disease requiring weekly chemo injections, herniated discs in my back. I have been on FMLA for 2 years – ran out of time 4 months early this time – will be losing my insurance at work at the end of this month as I cannot afford the expense of Cobra ($650.00) per month.  I am only  able to work around 20 hrs a week which is a struggle.  I cannot quit working completely as I will have no income to support myself at all.  All of this info to answer this question – do I have to be out of work to file for disability? – J

Jonathan Ginsberg responds: J, thank you for your question.  Here is the issue in a nutshell.  At the outset, if you call Social Security to apply (800-772-1213), the first question you will be asked by the operator is whether you are working.  If you respond “yes,” there is a chance that the operator will not even take your claim, especially if you are earning more than minimum wage.

Assuming that the Social Security operator does take your claim, here is what you will face:

First, you may have a problem with your date last insured for Title II Disability.  As you may know, you have to be “insured” for Disability.  Except in the case of claimants in their 20’s Social Security looks at your earnings record during the 10 year period prior to your becoming disabled.  You need work credits that amount to five out of the last ten years.  Logically, if you are working full time, your “insured” status follows you for approximately 5 years after you stop working.  When you work part time, however, you may very well lose ground and in a worst case situation, your date last insured may have already run, meaning that you would not be eligible at all for Title II.  Unlikely, but a possibility.  You definitely need to find out your “date last insured” for Title II.

Second, I think that part time work muddies the waters.  The legal definition of disability for Social Security purposes is whether you are unable to engage in substantial activity (i.e. work) because of a medically determinable condition or conditions that has lasted 12 consecutive months, is likely to last 12 consecutive months or result in death.  When you are working part time, you create a lot of questions for Social Security.  Is your work “substantial” (this is a legal determination)?  when is your onset date?  could you perform a less demanding task 40 hours a week?

The disability adjudicators who work for the State Agencies (the initial application and reconsideration appeal decision-makers) do not have the training or authority to find your disabled when there are so many legal determiantions that have to be made.  This means that your case will end up before a judge at a hearing at some point in the future (18 months to 3 years down the road).  Judges see folks all day, every day who are not working at all.  While they admire the work ethic of someone who is working part time, the issue usually comes down to whether that claimant could perform a lighter, less demanding job full time.  I can’t cite any statistics, but I’d be surprised if the approval rate for claimants working part time is more than 20%, as opposed to around 50% for claimants as a whole at hearings.

So, in my view, part time work makes it less likely that you would be approved.  Every case is different, of course, and you should speak with an attorney who practices where you live for legal advice.

What is my “Date Last Insured?”

Back in January, I answered a question from a blog reader about Social Security disability credits.  That reader wondered why Social Security had advised her that she had “run out of credits.”

You earn credits based on earnings during the approximately 10 year period prior to filing for disability.  If you wait too file or if you allege disability as of a date where your credits have run out, you cannot recover disability benefits (you could recover SSI, but SSI benefits are usually lower than SSDI and SSI will be offset by household income or assets).

When you file for benefits, Social Security calculates something called your “date last insured.”  As long as the judge or adjudicator finds you disabled on or before your date last insured, you will receive disability benefits.  If you are found disabled after your date last insured, you will not qualify for SSDI benefits.

In my law practice, one of my first tasks with any new client is to determine that client’s date last insured.  I have learned the hard way that if I am successful in proving disability, but the onset date used by the judge is after the date last insured, my client won’t receive any benefits and I won’t get paid for my efforts.

My colleague Social Security lawyer Tomasz Stasiuk in Colorado, recently posted a very well written explanation of the date last insured issue.  Take a minute and read Tomasz’ post because it clearly discusses and explains the major issues related to your date last insured.

How do Vocational Witnesses Prepare for Your Hearing?

One of the least intuitive elements of a Social Security hearing is the vocational witness testimony.  Social Security judges frequently request the presence of vocational witnesses (also known as “VE’s”), independent experts who appear at your hearing to classify your past work and to answer hypothetical questions from the judge about work you might be able to do, given the limitations set out in the hypothetical question.

Vocational experts serve as the bridge between the medical evidence in your case and the work limitations would allow a judge to conclude that there is no work you can perform.

I have written before that I do not consider vocational witnesses as enemies.  They do not make up the hypothetical questions, they just answer them.  As such, I disagree with some disability lawyers who aggressively cross examine vocational witnesses to challenge their credentials or the factual basis of their assertions.  In most cases, the vocational witnesses that appear are part of a panel of experts, and both the judge and the attorney know how the VE will answer a question.  I would resort to an aggressive cross examination if the VE presents testimony that is inconsistent with what I know to be accurate.

One of my readers emailed me a question about VE’s that I have not previously addressed, and I would like to answer it here.  Her question:

What constitutes the vocational evidence reviewed by the VE before the hearing?

In fact, vocational witnesses do prepare for hearings – here is what they do:

  1. they familiarize themselves with your work history.  Your original application as well as several of the other forms your fill out as part of your application contains a job history.  The VE will use this history to identify the types of jobs you have performed during the 15 year period prior to allegedly becoming disabled
  2. they review the Dictionary of Occupational Titles (the “DOT”).  Social Security currently relies on a book called the DOT to characterize jobs.  The DOT contains thousands of jobs, each classified by exertional level – sedentary, light, medium, heavy or very heavy – and by skill level – unskilled, semi-skilled, or skilled.  In preparation for your hearing the VE will classify your past work and identify any transferable skills that arise from any semi-skilled or skilled work you may have done
  3. they anticipate questions from the judge.  VE’s are not lawyers and they don’t, or shouldn’t, have any interest in the outcome of your case.  However, experienced VE’s have been present for hundreds or even thousands of hearings and they generally have an idea about what questions may arise.  In most cases, the bottom line question comes down to whether a claimant can reliably perform a simple, unskilled, sedentary job that is not production based and does not require any significant interaction with co-workers or supervisors.  Every VE has his own list of “the easiest jobs that exist” and ones that I hear often are jobs like “surveillance system monitor,”  “hand packer,” “foil wrapper,” or “textile inspector.”

I am going to be appearing with a VE from the Atlanta area panel and I’ll ask him to elaborate on this answer and I’ll update as appropriate.

What to do if You are Getting the Run-around from your Lawyer’s Office

I frequently get emails from frustrated disability claimants who are upset at the long delays.  Often the claimant expresses frustration with his lawyer because of the delays.  Earlier this week, for example, I received an email from an individual who is suffering with a fairly significant medical problems and who is about to lose her home – she wanted to fire her lawyer and retain me.  I responded by telling the claimant that the delays were not her lawyer’s fault and to stay the course.  In that case, I happened to know the lawyer and I also told her that she had very capable counsel.

This morning I received a slightly different question about attorneys, which I will reproduce here:

I hired a law firm to help me with my disability appeal. I am at the ALJ stage and needed help filing that appeal, representing me at the hearing. It is going on 3-4 weeks of talking with the lawyers clerk about filing for me. They say they filed one day, then the next say they are going to be filing, this has gone on 4 times now. Although I have not talked to the actual attorney that will be representing me, I don’t mind as long as the person I do talk to knows what they are doing and are truthful about it. What advice can you give me to handle this situation? Should I fire this firm and find another? I appreciate your suggestions, thoughts, advice.

Thanks,
Leighann

My response: Leighann’s question raises a somewhat different issue than delays.  Here, the problem is lack of communication.  Since short (60 day) deadlines are involved, I think that Leighann has the right to be concerened about missing the deadline.

Bear in mind that not missing deadlines is topic #1 in any malpractice or lawyer discipline seminar.  Every law firm should have a solid calendaring system to insure that no deadlines are missed.

Given the run-around that Leighann has been getting, it may be time for becoming a bit more forceful in her communications.  I would advise her to get the name of the paralegal who is assisting her, then write a letter to the paralegal, with a copy to the lawyer who is the actual representative.  The letter should express her concerns (like she did in her email to me) and ask for a copy of the filed appeal paperwork.   Both copies of this letter should be sent by registered mail, return receipt requested.

I don’t know the law firm at issue, but if they handle Social Security cases regularly, I would be surprised if they did not have the appeal deadlines of their cases under control.  However, nothing gets the attention of a lawyer like a registered letter from a client inquring about possible missed deadlines.

Correcting a Rent Offset in an SSI Claim

This morning, I received an email question from a woman named Elena.  I’m not sure if Elana is an attorney, a non-attorney rep or a relative of the claimant, but she raises an interesting issue about SSI offsets.

I don’t deal a lot with SSI issues on this blog mainly because I don’t take a lot of SSI cases.  If you do not know, there are a number of disability programs administered by Social Security – Title II Social Security Disability (also called SSDI) is one program, and Title XVI Supplemental Security Income (SSI) is the other.

SSDI pays benefits to claimants who are disabled and who have a qualifying earnings record.  To oversimplify, you qualify for SSDI if you have worked for five out of the last ten years.  There are exceptions to this general rule, but basically SSDI applies if you have worked and paid enough Social Security taxes to be “insured” for the SSDI program.

SSI, by contrast, pays benefits to claimants who are disabled but do not have sufficient earnings or assets to qualify for SSDI.  An SSI claimant can be a disabled child, a 20 year old with a serious medical problem and minimal work experience, or a 50 year old housewife who worked for 15 year back in the 1970’s and 80’s but has not worked at all in the last 10 years.

Up until last year, I rarely took SSI cases because Social Security would not withhold attorney’s fees on past due benefits.  Unfortunately, when did take SSI cases, we would win, and the claimant would get a lump sum check, but would not pay me the 25% owed.  As I got busier, I made the decision not to take SSI cases because they were not worth the risk.

Last year, Social Security finally corrected this glitch in the payment process and now they do issue direct payments to attorneys.  However, I am still very careful about taking SSI cases because of the offsets involved.

As noted above, SSI claims are only payable to claimants with limited assets and income.  Social Security will count as income something called “in kind” services, which can be room and board, welfare payments, or support from family.  Also SSI will reduce your benefits if you are living in a household with a spouse or family member who works.  That is why the 50 year old married housewife who lives with her employed husband may qualify medically, but will not recover any benefits because of the “deeming” of household income.

Obviously, SSI claimants have to live somewhere and they need funds for food and transportation as well.   Therefore, in many cases there is an offset of benefits.  Since SSI benefits are set by law and the maximum monthly SSI benefit (for 2008) is $637, it doesn’t take too much in kind support or deeming to reduce that benefit down to nothing.  As a matter of business, I just can’t take on cases where I work for 2 to 3 years, appear at a hearing and expend hours of my time and paralegal time, only to end up with $400 or $500 or, in some cases, nothing.

With that background stated, let me address Elana’s question, which is:

I have a gentleman that lives with daughter and pays $500.00 for rent which he reported to SS. His daughter was asked to complete a form which asked the market value of room.  She put $1,000.00 market rent.  Now SSI benefits were reduced by the value of the $500.00 as income to the man.  How can he correct this.  I thought of obtaining an appraisal by a Real Estate Agent of the rental market value of the room.  If less than $1,000.00 submit this document to SS along with the request for reconsideration.  Do you think this would work?  Do you have any other suggestions to try to correct the market value of the room? I appreciate your input.  Thank you.

Here is my response: In this situation, the claimant is dealing with an offset of his benefits.  Based on the information that the claimant’s daughter provided, she is “giving” her father $500 of value in the form of room and board.  Social Security is reducing his benefit by that in kind support.  Assuming that the father is getting the maximum $637 from SSI, the $500 reduction leaves him with only $137 per month to live on.

Now, the father and daughter need to argue to Social Security that the actual market value of the father’s room is something less than $500.

I think that Elana is on the right track regarding what to do.  I would gather documentation from local real estate professionals.  This could take the form of a notarized statement, or documentation of comperable rental units in the area.

The father needs to look carefully at the documentation he has received from SSI.  I believe that when SSI computes an offset they provide written notice.  He needs to see if that written notice provides for any appeal rights or deadlines.

In any case, I would contact the local SSI office and ask to speak to a supervisor to discuss correcting this error.  Hopefully SSI will be cooperative.  If not, you may need to file for reconsideration of the deduction – my only question is whether the father has missed any applicable deadlines to do so.

How Do I Fire my Disability Lawyer?

My question is this.  I had a lawyer in NC for my disability hearing which I lost. His representation was horrible, not to mention his communication with me. Anyway, I told him I no longer wanted his services for my appeal. He said he would file a form with SSA stating that he was not my lawyer. I ask him to send me a copy 3 weeks ago. He did not. I emailed him again and ask him if he had even sent the form. he sent me a very rude reply with no answer.
I need to let SSA know that this man is not my lawyer. I called and they still have him listed. How do I get him off as my lawyer? He obviously isn’t going to cooperate. He is horrible. Some advice????
Robin

Jonathan Ginsberg responds: As a disability claimant, you have the right to terminate the representation of your attorney.  The attorney doesn’t need any special form to withdraw from representation – all he needs to do is write a letter to Social Security advising them that his attorney relationship with you has ended.   I do not practice in North Carolina but I suspect that under the Bar rules there, your lawyer has an affirmative obligation to withdraw if you have terminated him.  In order to avoid confusion, you should send your lawyer a letter using certified mail, return receipt requested, asking him to notify Social Security that he is no longer your representative.

I would also suggest that you look carefully at the fee contract you signed with your lawyer.  Often the standard fee agreement used by most disability lawyers also allows the lawyer to ask Social Security to approve a fee based on time expended.  Further, be aware that if “Lawyer 1” has filed a form 1696 Appointmetn of Representative, any subsequent lawyer you hire – “Lawyer 2” – will need to file a fee petition setting out exactly what he did and how much time he spent.  The fee petition process is much more time consuming and intrusive than the simple 25% fee agreement system.  I mention this because some lawyers will not take a case if a prior lawyer withdrew and will not waive fees.

Finally, make sure that there is no confusion as to who has the duty to file appeals or respond to communication from the Appeals Council.  You do not want to miss an appeal or file double appeals forms because this issue was not cleared up.

It is unfortunate that your relationship with your lawyer deteriorated.  It is much easier to part ways on a friendly basis.  At this point, however, you may best be served by communicating with your lawyer in writing only and by spending a few extra dollars on certified mail.

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

In Dec. 13, 2007 you responded to my question on your Social Security Disability podcast about non compliance and electroconvulsive therapy (ECT). I had tried numerous antidepressant medications with no success. I was desperate for answers and sought out a new psychiatrist  who specializes in electroconvulsive therapy.  After he conducted my fourth of six ECT treatments. I started experiencing a very weird scary state of mind, almost like I was seeing things in a dreamlike state of mind. I stopped at the fourth ECT for this reason. Its hard to describe such feelings in words but it was a very eery scary feeling.  How will Social Security view my situation?

–Mike

Jonathan Ginsberg responds: Mike, I think that Social Security expects claimants to pursue all reasonable courses of treatment.  This does not extend to invasive procedures (such as surgery), or therapy that involves powerful medications or treatments.  In my view, therefore, your refusal to continue with ECT treatments because of undesireable side effects would not be held against you.

I recall having this discussion with one of the judges in my local hearing office.  He gave me an example using his wife as an example.   The judge revealed to me that his wife had a bad case of hemorrhoids, which could be easily treated with a 30 minute outpatient procedure.  He indicated that if his wife was appearing before him claiming disability arising from pain associated with those hemorrhoids, he would want to know why she had not sought out such a readily available cure.

I think that this judge raised an interesting issue.  I think that a judge would be reversed by the Appeals Council if he denied a claim because a claimant refused open heart surgery or a spinal fusion because it is entirely reasonable to decline treatment that carries with it a risk of permanent damage or death.  I think that ECT treatments fall into this category.

On the other hand, I think that a judge would be justified in denying a claim for visual impairment if the claimant refused to wear glasses.

What about those cases where a claimant has moral or religious grounds to refuse treatment.  Would a diabetic who refuses insulin on religous grounds or because of a fear of needles get approved?  Would that hemorrhoid patient be denied because she feared any type of surgery, no matter how minor?

Judges are human beings and they expect that claimants will make a real effort to improve their health and rejoin the workforce.  Judges sense when claimants are trying to avoid work, so, in general, if you have refused treatment, I think you need to be prepared to give a legitimate reason why.

I also think that if you refuse treatment, you should not expect to stay at home waiting for your check.  Judges expect you to seek out whatever treatment you can handle and that you can afford.   In Mike’s case, I think he is justified in refusing ECT because of the side effects, but I also think that he needs to continue with whatever other treatment has been prescribed – therapy, medications (if applicable), etc.  Even if some of those alternatives don’t seem to be effective, it is important to build an on-going, long term medical treatment record.

Will Filing a Bankruptcy Affect My Social Security Disability Case?

In my law practice, I have handled both bankruptcy and Social Security disability cases.  Unfortunately, with delays in the Social Security system approaching 3 years, more and more of my disability clients find themselves considering bankruptcy.

What happens, therefore, if you decide to file for bankruptcy while you are waiting for your Social Security decision?  What happens if your SSDI or SSI case is approved the week after you file for bankruptcy?  Can you keep your past due “lump sum?”  Does your attorney get paid?

If you have a pending Social Security application, you need to let your bankruptcy lawyer know about it.  Bankruptcy lawyers hate surprises and pending Social Security benefits are certainly relevant to a bankruptcy evaluation.

Under the current bankruptcy law, Social Security benefits are not countable for means test purposes but they may be countable for budget purposes.  So, if you do get approved for benefits while your bankruptcy is still active, you may need to amend your budget.

In my view, bankruptcy works best when there are no changes during the course of your case – whether you file Chapter 7 or Chapter 13.  The addition of, say, $1,500 per month to a bankruptcy budget will change things and you need to know in advance what this change will mean.

The question on the mind of most Social Security applicants has to do with the lump sum payment – which represents months or years of “past due benefits.”  Can you keep this lump sum?  The answer is “it depends.”  It depends on your State’s exemption laws and the practice and procedure in your local bankruptcy court.

In the Northern District of Georgia, where I practice bankruptcy, I have successfully argued that my client’s Social Security disability payments are exempt assets pursuant to Georgia’s exemption statute, which makes exempt a “debtors right to receive a Social Security benefits.”   I take the position that the monthly benefits would have been exempt and that the debtor should not lose his lump sum check because Social Security took two to three years to issue payment.

Every State has its own exemption rules.  And every bankruptcy filing jurisdiction has most likely reached a consensus about this issue.   I suspect that in some jurisdictions, the trustee will ask for some of the lump sum.  Perhaps there are some where the entire lump sum is in play.  The point – ask your bankruptcy lawyer.  It may change when your file and what bankruptcy chapter you choose.

Similarly, you need to tell both your Social Security lawyer and your bankruptcy lawyer about both cases.  Your Social Security lawyer is entitled to get paid for his efforts.  He may need to file a special application in bankruptcy court to be approved as special counsel.  He may also need to file a motion for approval of his fees.

The bottom line: advise both your bankruptcy lawyer and your disability lawyer about your respective cases.  Ask your lawyer to sketch out in writing what you can expect.  I can imagine nothing more frustrating than to hang on for three years waiting for that past due benefit check, only to find that a trustee has grabbed it.

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