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Case 2:12-cv-00840-RDP Document 11 Filed 07/30/13 Page 1 of 13

FILED

2013 Jul-30 AM 10:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

Plaintiff,


JOHNNY EDWARD RODGERS,



v.

MICHAEL J. ASTRUE,
Commissioner of
Social Security,





Defendant.




Civil Action No.: 2:12-CV-00840-RDP

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MEMORANDUM OF DECISION





Plaintiff Johnny Edward Rodgers brings this action pursuant to Title XVI of Section

1631(c)(3) of the Social Security Act (the “Act”), seeking review of the decision by the

Commissioner of the Social Security Administration (“Commissioner”) denying his claim for

Supplemental Security Income (“SSI”). See also, 42 U.S.C. § 1383(c). Based upon the court’s

review of the record and the briefs submitted by the parties, the court finds that the decision of

the Commissioner is due to be affirmed.

I.



Proceedings Below

This action arises from Plaintiff’s application for SSI, filed protectively on April 28,

2009, alleging disability beginning February 1, 2009. (Tr. 248-54). The Social Security

Administration denied Plaintiff’s claim on July 8, 2009. (Tr. 113-18). Unsatisfied with the

Commissioner’s decision, Plaintiff requested a hearing before an Administrative Law Judge. (Tr.

119). Plaintiff’s request was granted, and a hearing was held on November 9, 2010 before

Administrative Law Judge Michael L. Levinson (“ALJ”). (Tr. 105). At the hearing, the ALJ

granted leave to amend Plaintiff’s alleged onset of disability date to May 8, 2009. (Tr. 97, 105,

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262). After this hearing, the ALJ determined that further medical evidence needed to be

collected, and a second hearing was set for April 5, 2011. Id. After reviewing the medical

evidence presented at the second hearing, the ALJ determined that “further clarification from a

medical expert” was necessary, and a final supplemental hearing was held on August 11, 2011.

Id. In his decision dated August 20, 2011, the ALJ concluded that Plaintiff had not been under a

disability within the meaning of § 1614(a)(3)(A) of the Act since April 28, 2009, the date the

application was filed. (Tr. 109). The Appeals Council then denied Plaintiff’s request for review

of the ALJ’s decision (Tr. 1-3), thus making the Commissioner’s decision final and a proper

subject of this court’s judicial review. See 42 U.S.C. § 1383(c)(3).



Plaintiff was forty-seven years of age at the time of the ALJ’s decision. (Tr. 248).

Plaintiff has completed one year of college (Tr. 274), and has prior work experience as a parts

inspector, house repairer, cook, dishwasher, store laborer, and grinder. (Tr. 34-36, 108). In his

application, Plaintiff alleged disability based on asthma and chronic back pain. (Tr. 268).



The first medical documents in the record date back to October 11, 2005. (Tr. 342-44).

On that date, Plaintiff fell off a ladder and was taken to Princeton Baptist Medical Center, where

he was treated for pain in his back and shoulders. (Tr. 342). The ER records from Princeton

Baptist note a previous back injury, also sustained in a fall. (Tr. 344). Most likely, this is a

reference to when Plaintiff fell off a house while making repairs some years previously. (Tr. 80).

According to Plaintiff’s testimony, the fall off the house precipitated a steady decline in his

ability to work because that event was when his “pain started.” Id.



Medical records from UAB Hospital show that in November 2005, Plaintiff suffered

second-degree scald burns to 3% of his total body surface area. (Tr. 323). Plaintiff was given

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medication for the pain, and discharged the next day with instructions to keep the wound clean.

(Tr. 324).



Plaintiff testified that in 2009, he greatly exacerbated his pre-existing back injury while

digging a ditch, leaving him unable to work due to back pain. (Tr. 43, 80-81). In April 2009,

Plaintiff went to Cooper Green Hospital complaining of back spasms. (Tr. 332-34). Medical

records dated April 20, 2009 indicate that X-rays were taken, and Dr. William Cason, diagnosed

Plaintiff with spondylosis of the cervical spine. (Tr. 336). A little over a year later, Plaintiff

visited UAB Medical West, seeking treatment for the chronic pain in his right shoulder. (Tr.

349). On May 29, 2010, new X-rays were taken of Plaintiff’s cervical spine, this time revealing

“mild spondylotic change” at C4-C5 and “advanced [degenerative disc disease] and spondylosis

at C5-C6 and 6-7.” (Tr. 355).



In June 2010, disaster—quite literally—struck: Plaintiff was hit by an automobile as he

attempted to cross a street. (Tr. 72, 377). Following this incident, Plaintiff was admitted to UAB

Hospital on June 17, 2010. (Tr. 362). Clinical notes describe Plaintiff’s condition upon arrival as

“combative, yelling, uncooperative, and not following commands.” (Tr. 386). CT scans were

performed, revealing a “minimally displaced intra-articular fracture of the distal radius” (Tr.

369), a “triquetral fracture” (Tr. 375), and a “tiny nondisplaced fracture of the base of the distal

phalanx of the right thumb” (Tr. 368). However, CT scans revealed no evidence of a fracture or

dislocation of the cervical spine or shoulder (Tr. 367, 371). A splint was applied to Plaintiff’s

wrist, and he was prescribed Lortab to manage the pain. (Tr. 365, 378). Plaintiff was discharged

three days later with instructions to follow up at Cooper Green Clinic. (Tr. 378).



Two weeks after this accident, medical records from Cooper Green indicate Plaintiff was

taking seven different medications; Hydrocodone, Oxycodone, Tramadol, Robaxin, Motrin,

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Gabapentin, and Lisinopril. (Tr. 405). X-rays taken around that time revealed acromioclavicular

separation, and an old compression fracture at C5-C6. (Tr. 410). The most recent medical records

from Cooper Green, dated September 29, 2010, indicate Plaintiff’s broken wrist was healing

well. (Tr. 434).



During his alleged period of disability, Plaintiff estimated that he experienced back pain

about eighty percent of the time. (Tr. 66). When asked to describe his pain, Plaintiff testified

that the aching pain and spasms in his shoulder often migrated down into his right arm. (Tr. 59).

On a scale of one to ten, Plaintiff rated this pain as ranging from between a five to a seven. (Tr.

67). Plaintiff reported that his pain worsened with long periods of sitting, standing, or walking.

(Tr. 63). Plaintiff asserts that from his alleged onset of disability date onwards, he used Cooper

Green “as his primary care [facility] for pain management.” (Tr. 44). Clinical notes written by

Dr. Martin Bohnenkamp, a treating physician at Cooper Green, describe Plaintiff’s shoulder pain

as “out of proportion to exam.” (Tr. 407). Furthermore, Dr. Bohnenkamp describes Plaintiff as

“not truthful” with respect to his treatment history, and prone to giving “convoluted discharge

history that is nonsense.” Id.



After reviewing all of Plaintiff’s medical records, Dr. Brovender—an impartial medical

expert and board-certified orthopedic surgeon—determined that Plaintiff was afflicted with

several severe medical impairments: namely, “degenerative disc disease and degenerative joint

disease of the cervical spin, and acromioclavicular separation, [sic] a fractured right wrist, and a

fractured carpal bone.” (Tr. 25). However, Dr. Brovender indicated that none of these ailments,

either combined or separately, met or equaled any of the listed impairments. (Tr. 26). Based on

Plaintiff’s impairments and taking into account Plaintiff’s subjective experience of pain, the

medical expert opined that Plaintiff was capable of lifting twenty-five pounds frequently, and

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fifty pounds occasionally, and while Plaintiff should not climb ladders or scaffolding, Plaintiff

was capable of sitting or standing for six to eight hours. (Tr. 27-31).

II.

ALJ Decision

Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520.

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.

20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing

significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity ” is

work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant

engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §

404.1520(b). Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of medical impairments that significantly limits the

claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such

impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether

the claimant’s impairment meets or medically equals the criteria of an impairment listed in 20

C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.

If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).



If the claimant does not fulfill the requirements necessary to be declared disabled under

the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ

must first determine the claimant’s residual functional capacity (“RFC”), which refers to the

claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step,

the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R.

§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant

work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to

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perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. §

404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant

is able to perform any other work commensurate with his RFC, age, education, and work

experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the

ALJ to prove the existence, in significant numbers, of jobs in the national economy that the

claimant can do given his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),

404.1560(c).



In the instant case, the ALJ determined that Plaintiff has not engaged in substantial

gainful activity since his application for SSI benefits, and that Plaintiff is afflicted with several

severe impairments—arthritis of the cervical spine, degenerative joint disease, status post

fractured radius bone, acrimonies clavicle separation, and burns to 3% of the body. (Tr. 106).

However, the ALJ found that despite these maladies, Plaintiff “does not have an impairment or

combination of impairments that meets or medically equals the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Id.) After consideration of the

record, the ALJ then determined that Plaintiff has the residual functional capacity to lift/ carry

fifty pounds occasionally, and twenty-five pounds frequently. (Tr. 107). The ALJ determined

that although Plaintiff is unable to climb ropes or scaffolding, Plaintiff is capable of sitting or

standing for six hours out of an eight hour work day. Id. Finally, the ALJ found that Plaintiff is

capable of performing past relevant work as a store laborer, dishwasher, cook, parts inspector,

and grinder. (Tr. 108). Based upon this analysis, the ALJ concluded that Plaintiff is not disabled.

(Tr. 108-09).





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III.

Plaintiff’s Argument for Reversal





Plaintiff presents two arguments why this court should reverse the decision of the ALJ.

First, Plaintiff contends “the ALJ erred in failing to develop the record.” (Pl.’s Mem. 11).

Second, Plaintiff contends the ALJ committed error by “according dispositive weight to the

medical expert opinion absent such development [of the record].” (Pl.’s Mem. 10).

IV.

Standard of Review



The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838

(11th Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847

F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42

U.S.C. § 405(g) mandates that the Commissioner’s findings are conclusive if supported by

“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district

court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of

the Commissioner; instead, it must review the final decision as a whole and determine if the

decision is reasonable and supported by substantial evidence. See Id. (citing Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).



Substantial evidence falls somewhere between a scintilla and a preponderance of

evidence; “[i]t is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other

citations omitted). If supported by substantial evidence, the Commissioner’s factual findings

must be affirmed even if the evidence preponderates against the Commissioner’s findings. See

Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s

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findings is limited in scope, the court also notes that review “does not yield automatic

affirmance.” Lamb, 847 F.2d at 701.

V.

Discussion



After careful review, the court concludes that the ALJ’s fact finding is supported by

substantial evidence and that correct legal standards were applied. The court addresses Plaintiff’s

arguments below.





A. The ALJ Fulfilled his Duty to Fully and Fairly Develop the Record.

Plaintiff claims the ALJ failed in his duty to develop the record in two regards. Plaintiff

argues the ALJ committed error by: (1) not obtaining up-to-date medical records from Cooper

Green Hospital; and (2) not ordering a consultative examination.

1. The ALJ Adequately Developed the Record with Respect to Plaintiff’s

Medical Records.




First, Plaintiff argues the ALJ committed error by failing to supplement the medical

records from Cooper Green Hospital with records of Plaintiff’s ongoing treatment received there

after September 2010. (Pl.’s Mem. 9-10). Plaintiff contends these records were necessary for the

ALJ to accurately determine “[his] medical status or his Residual Functional Capacity (RFC) at

the time of his adjudication.” (Pl.’s Mem. 10). Plaintiff asserts that his testimony hinting at the

existence of these medical records placed the ALJ under a duty to obtain these documents. Id.

For the reasons discussed below, the court finds Plaintiff’s arguments are unpersuasive.



It is axiomatic that the ALJ has a duty to develop a full and fair record. Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Cowart v. Schweiker, 662 F.2d 731, 735 (11th

Cir. 1981). Nevertheless, the burden remains with the claimant to prove that he is disabled and

to produce medical evidence supporting his claim. 20 C.F.R. § 416.912(c); Ellison, 355 F.3d at

1276. With respect to medical records, the ALJ has a duty to develop the claimant’s complete

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medical history for the 12 months preceding the month in which the claimant filed his

application for supplemental security income. 20 C.F.R. § 416.912(d); Ellison, 355 F.3d at 1276.

In general, the ALJ’s duty to develop the claimant’s medical history does not extend to the

period after the filing of the claimant’s application. Ellison, 355 F.3d at 1276 (holding that the

ALJ did not have a duty to develop the medical record for the two years after the claimant filed

his application); see also Smith v. Comm’r of Soc. Sec., 2012 WL 6197984 (11th Cir.

2012)(citing Ellison, 355 F.3d at 1276). A heightened duty to develop the record and obtain up-

to-date medical records is imposed upon the ALJ in the case of an unrepresented claimant. See

Brown v. Shalala, 44 F.3d 931 (11th Cir. 1995).



In the instant case, Plaintiff filed his application for supplemental security income on

April 28, 2009. (Tr. 105). Thus, the ALJ was required to develop Plaintiff’s medical history for

the twelve months prior to April 2009. 20 C.F.R. § 416.912(d); Ellison, 355 F.3d at 1276.

Plaintiff does not allege the ALJ failed in respect to this obligation; rather, Plaintiff argues the

ALJ failed to update his medical records after the filing of his application. (Pl.’s Mem. 9-10).

Because those dates are outside the twelve month period preceding the date of Plaintiff’s

application, the ALJ’s duty to develop the record does not extend so far. See Ellison, 355 F.3d at

1267. Furthermore, it is ultimately Plaintiff’s burden to produce medical evidence demonstrating

his disability. 20 C.F.R. § 416.912(d); Ellison, 355 F.3d at 1276. If Plaintiff believed the updated

medical records from Cooper Green were necessary to prove his disability, it was his duty to

provide them. Additionally, Plaintiff was at all relevant times represented by counsel in this

matter and had ample opportunity to submit the medical records to the ALJ by himself or

through counsel. Indeed, the ALJ specifically granted the second hearing expressly for the

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purpose of allowing more time to collect medical evidence. (Tr. 105). Plaintiff himself was in the

best position to obtain records of his treatment history.

2. The ALJ Did Not Commit Error by Failing to Obtain a Consultative

Examination.




Second, Plaintiff argues the ALJ should have “obtained a consultative examination (CE)

to obtain a medical source opinion (MSO) pursuant to 20 C.F.R. 416.919a.” (Pl.’s Mem. 10).

According to Plaintiff, this omission amounts to a breach of the ALJ’s duty to develop the

record, and thus constitutes reversible legal error. (Pl.’s Mem. 9-11). For reasons discussed

below, the ALJ was not required to obtain a consultative examination in this case.



The ALJ’s duty to develop the record indeed encompasses an obligation to order a

consultative evaluation when one is needed to make an informed decision. Holladay v. Bowen,

848 F.2d 1206, 1209 (11th Cir. 1988) (citing Reeves v. Heckler, 734 F.2d 519, n.1 (11th Cir.

1984)). However, the ALJ is “not required to order a consultative examination as long as the

record contains sufficient evidence for the administrative law judge to make an informed

decision.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007).

Normally, a consultative examination is only required when “necessary information is not in the

record and cannot be obtained from the claimant’s treating medical sources or other medical

sources.” Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001) (citing 20 C.F.R. § 404.1519a).



In this case, there was sufficient evidence in the record for the ALJ to determine

Plaintiff’s RFC without ordering a consultative evaluation. Plaintiff’s medical history is

documented extensively. Among other things, the record includes: medical records documenting

Plaintiff’s back and shoulder pain dating as far back as October 2005 (Tr. 340-48); records

created by UAB hospital after Plaintiff was treated for scald burns (Tr. 319-27); numerous

documents reporting the results of various x-rays and CT scans (Tr. 336, 355, 369, 375, 410); ER

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records from UAB Medical Center generated following Plaintiff’s automobile-pedestrian

collision in June 2010 (Tr. 377-402); and medical records from Cooper Green Hospital, where

Plaintiff was receiving treatment for pain management on an ongoing basis. (Tr. 403-37).

Additionally, Plaintiff himself testified at length describing his subjective experience of pain.

(Tr. 59-70).



After reviewing all the medical evidence, the ALJ still concluded he needed “further

clarification from a medical expert” in order to reach a truly informed decision. (Tr. 105). In

order to ensure that he fully understood Plaintiff’s “multiple issues,” the ALJ unilaterally

scheduled a third hearing and appointed a board certified orthopedic surgeon to serve as an

impartial medical expert. (Tr. 21-22). This medical expert reviewed all the evidence, taking into

account Plaintiff’s reports of chronic pain, and issued an informed opinion as to Plaintiff’s RFC.

(Tr. 27-31). Thus, there was sufficient evidence for the ALJ to make an informed decision

without requesting a consultative evaluation, and the ALJ satisfactorily fulfilled his duty to

develop the record in this case.





B. The ALJ Accorded Proper Weight to the Testimony of the Medical Expert.

Plaintiff’s final argument is that the ALJ accorded undue weight to the opinion of the

non-examining medical expert, Dr. Brovender. (Pl.’s Mem. 10-11). Plaintiff argues the ALJ

should not have relied on Dr. Brovender’s testimony because Dr. Brovender made his

determinations based on a “grossly incomplete” record and without hearing from Plaintiff in

person. (Pl.’s Mem. 10). Essentially, Plaintiff contends that the ALJ determined his RFC based

solely on Dr. Brovender’s testimony, and this determination was not based on substantial

evidence. (Pl.’s Mem. 11). However, contrary to Plaintiff’s argument, substantial evidence

supports the ALJ’s decision to afford considerable weight to the opinions of Dr. Brovender.

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When evaluating the weight to be afforded a medical expert’s opinion, the ALJ considers,

inter alia, the expert’s relationship with the claimant and the extent to which the expert supports

his opinion. See 20 C.F.R. § 404.1527. In general, “the more consistent an opinion is with the

record as a whole, the more weight [the ALJ] will give to that opinion.” 20 C.F.R. §

404.1527(c)(4). The opinion of a non-examining physician, standing alone, does not constitute

substantial evidence where it contradicts the testimony of a treating physician. Lamb v. Bowen,

847 F.2d 698, 703 (11th Cir. 1988) (citing Johns v. Bowen, 821 F.2d 551, 554 (11th Cir. 1987));

see also, Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). However, where the testimony

of the non-examining physician is consistent with the report of the examining physician, the ALJ

does not err in relying on the testimony of the non-examining physician. Edwards v. Sullivan,

937 F.2d 580, 584-85 (11th Cir. 1991).



The ALJ’s decision to rely on the testimony of Dr. Brovender is supported by substantial

evidence. As a preliminary matter, Dr. Brovender is an impartial medical expert and board

certified orthopedist who specifically addressed the question of Plaintiff’s RFC in the context of

his medical history. (Tr. 27-31). As the ALJ correctly pointed out, no other physician, examining

or otherwise, has put forth an opinion that is inconsistent with Dr. Brovender’s assessment of

Plaintiff’s RFC. (Tr. 27, 108). Indeed, Dr. Brovender’s opinion is completely consistent with the

clinical notes of Dr. Martin Bohnenkamp, a treating physician at Cooper Green. Dr.

Bohnenkamp stated in his report that Plaintiff was “not truthful” about his treatment history, and

his shoulder pain was “out of proportion to exam.” (Tr. 407). An ALJ does not err in relying on

the opinion of a non-examining medical expert where it is consistent with the reports of a

treating physician. See Edwards, 937 F.2d at 584-85.

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Furthermore, Dr. Brovender’s opinion is consistent with the record as a whole. Plaintiff’s

subjective pain and objective, documented impairments, although severe enough to prevent him

from climbing scaffolding, are not so severe that he could never lift fifty pounds or engage in

overhead lifting with his right arm. (Tr. 27-31). For instance, Plaintiff himself testified that his

son weighs between sixty and seventy pounds, and he “pick[s] him up often.” (Tr. 65).



Because Dr. Brovender’s opinion was consistent with the opinions of Plaintiff’s treating

sources at Cooper Green as well as the record as a whole, the ALJ did not err by relying on his

opinion.

VI. Conclusion



The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence, and the ALJ applied the proper legal standards in arriving at

this decision. Accordingly, the Commissioner’s final decision is due to be affirmed. A separate

order in accordance with this memorandum of decision will be entered.

DONE and ORDERED on July 30, 2013.







_______________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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