Jackson v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/25/14. (ASL)
2014 Sep-25 PM 04:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WILLIE FRED JACKSON,
CAROLYN W. COLVIN
Acting Commissioner of the
Social Security Administration,
Case No.: 2:13-CV-00345-MHH
Pursuant to 42 U.S.C. § 405(g), plaintiff Willie Fred Jackson seeks judicial
review of a final adverse decision of the Commissioner of Social Security
affirming the decision of the Administrative Law Judge (“ALJ”), who denied Mr.
Jackson’s claim for a period of disability and disability insurance benefits and his
claim for supplemental security income (Doc. 1). As discussed below, the Court
finds that substantial evidence supports the ALJ’s decision. Therefore, the Court
affirms the Commissioner’s decision.
STANDARD OF REVIEW:
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). In making this evaluation, the Court may not “reweigh the evidence or
decide the facts anew,” and the Court must “defer to the ALJ’s decision if it is
supported by substantial evidence even if the evidence may preponderate against
it.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
PROCEDURAL AND FACTUAL BACKGROUND:
Mr. Jackson filed a Title II application for a period of disability and
disability insurance benefits and a Title XVI application for supplemental security
income on May 26, 2010. (Doc. 8-6, pp. 134-37; pp. 138-41). The Commissioner
initially denied these claims, and Mr. Jackson requested a hearing before an ALJ.
(Doc. 8-3, p. 96). An ALJ conducted a hearing on November 21, 2011. (Doc. 8-3,
Mr. Jackson was 49 years old and had a high school education at the time of
the administrative hearing. (Doc. 8-3, p. 40). He had past work experience as a
construction worker, manhole inspector/repairer and working foreman for manhole
repair. (Doc. 8-3, p. 30). Mr. Jackson alleged that he became disabled on April
27, 2010 because of a neck injury, a back injury, and a spinal injury. (Doc. 8-3, p.
40). He testified that his average daily pain level was a seven or eight on a zero-toten scale. (Doc. 8-3, p. 51).
On February 23, 2012, the ALJ issued a decision concluding that Mr.
Jackson was not disabled within the meaning of the Social Security Act. (Doc. 83, p. 31). He found that Mr. Jackson met the insured status requirements of the Act
and had not engaged any gainful activity since the alleged onset date. (Doc. 8-3, p.
23). The ALJ determined that Mr. Jackson suffered from the following severe
impairments: cervical disk herniation at C5/6 status post anterior cervical
disease/osteoarthritis of the lumbar spine, and hypertension. (Doc. 8-3, p. 23).
However, he concluded that these impairments, individually or in combination, did
not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Doc. 8-3, p. 24).
Next, the ALJ determined that Mr. Jackson retained the residual functional
capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a) except that Mr. Jackson must avoid concentrated
exposures to heat, cold and vibration; Mr. Jackson cannot work with hazardous
machinery or unprotected heights; Mr. Jackson can only occasionally climb stairs
and ramps, balance, stoop, kneel, crouch, and crawl; Mr. Jackson cannot reach
overhead with the bilateral upper extremities; and Mr. Jackson can only
occasionally push or pull with the bilateral upper extremities. (Doc. 8-3, p. 25).
In making this finding, the ALJ considered Mr. Jackson’s testimony.
However, he found Mr. Jackson’s testimony, to the extent that it differed from the
RFC assessment, was not credible. (Doc. 8-3, p. 29). The ALJ reasoned that Mr.
Jackson’s inconsistent and conservative treatment, Mr. Jackson’s daily activities,
and the objective medical evidence supported the RFC finding. (Doc. 8-3, pp. 2829). Additionally, the ALJ relied on reports from Mr. Jackson’s medical records;
from his chiropractor, consultative medical examiner Dr. Rodolfo Veluz; and from
non-examining state agency consultant Dr. Robert Heilpern. (Doc. 8-3, p. 29).
Based on the RFC determination, the ALJ found that Mr. Jackson is unable
to perform his past work, but jobs exist in the national economy and in Alabama in
significant numbers that Mr. Jackson can perform.
(Doc. 8-3, p. 30). The ALJ
relied on the testimony from the vocational expert (“VE”) that Mr. Jackson can
work as an assembler, sealer, or bench worker. (Doc. 8-3, p. 31). For these
reasons, the ALJ concluded that Mr. Jackson is not disabled under the Social
On December 22, 2012, the Appeals Council declined Mr. Jackson’s request
for review of the ALJ’s decision. (Doc. 8-3, pp. 1-6). Having exhausted all
administrative remedies, Mr. Jackson filed this action for judicial review pursuant
to §205(g) and §1631(c)(3) of the Social Security Act. See 42 U.S.C. §405(g) and
Disability under the Social Security Act is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C.A. § 423(d)(1)(A). A claimant “bears the burden of proving
that he is disabled, and, consequently, he is responsible for producing evidence in
support of his claim.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
To determine whether a claimant is disabled, the Social Security
Administration applies a five-step sequential analysis. Gaskin, 533 Fed. Appx. at
This process includes a determination of whether the claimant (1) is
unable to engage in substantial gainful activity; (2) has a severe and
medically-determinable physical or mental impairment; (3) has such
an impairment that meets or equals a Listing and meets the duration
requirements; (4) can perform his past relevant work, in the light of
his residual functional capacity; and (5) can make an adjustment to
other work, in the light of his residual functional capacity, age,
education, and work experience.
Id. (citation omitted).
“The claimant’s residual functional capacity is an
assessment, based upon all relevant evidence, of the claimant’s ability to do work
despite his impairments.” Id. (citing Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997); 20 C.F.R. § 404.1545(a)(1)).
Mr. Jackson argues that he is entitled to relief from the ALJ’s decision
because the ALJ: (1) erred by mechanically applying the Medical Vocational
Guidelines; (2) failed to adequately consider the opinion of examining physician,
Dr. Veloz; and (3) improperly applied the pain standard. (Doc. 12, p. 5). The
Court finds that these contentions lack merit.
I. Medical Vocational Guidelines
Mr. Jackson argues that the ALJ erred in applying the Medical Vocational
Guidelines.1 The regulations provide that an ALJ should not mechanically apply
the grids “[i]f [a claimant is] within a few days to a few months of reaching an
older age category, and using the older age category would result in a
determination or decision that [the claimant is] disabled.”
20 C.F.R. §
To be considered in the higher age category, the claimant must “proffer
substantial credible evidence that his ability to adapt is less than the level
established under the grids for persons his age.” Reeves v. Heckler, 734 F.2d 519,
525 (11th Cir. 1984). If the claimant presents such evidence, then “the district
court is required to remand the case to the [Commissioner].” Patterson v. Bowen,
799 F.2d 1455, 1458-59 (11th Cir. 1986) (citing Reeves, 734 F.2d at 525). Without
“such a proffer, the ALJ's mechanistic use of the age grids would be harmless error
and there would be no need to remand to the [Commissioner].” Id.
Because he turned fifty years old within four months of the date of the ALJ’s
decision, Mr. Jackson argues that the ALJ should have rated him as an
“Social Security regulations currently contain a special section called the Medical Vocational
Guidelines. 20 C.F.R. pt. 404 subpt. P, app. 2. The Medical Vocational Guidelines (“grids”)
provide applicants with an alternate path to qualify for disability benefits when their impairments
do not meet the requirements of the listed qualifying impairments. The grids provide for
adjudicators to consider factors such as age, confinement to sedentary or light work, inability to
speak English, educational deficiencies, and lack of job experience.” Phillips v. Barnhart, 357
F.3d 1232, 1239-40 (11th Cir. 2004)
“individual approaching advanced age.” 20 C.F.R. Part 404 Subpart P, Appendix
2. Mr. Jackson adds that if the ALJ also found that he (Mr. Jackson) did not have
transferable skills,2 then he would be disabled under the grids. 20 C.F.R. Part 404
Subpart P, Appendix 2. This argument fails for two reasons.
First, the ALJ did not apply the grids. In fact, he specifically declined to
apply the grids because “the claimant’s ability to perform all or substantially all of
the requirements of this level [sedentary] of work has been impeded by additional
(Doc. 8-3, p. 30).
Instead, the ALJ sought and relied on the
testimony of a VE to determine whether Mr. Jackson could perform other work.
(Doc. 8-3, p. 30; Doc. 8-3, p. 65). In similar circumstances, the Eleventh Circuit
[T]he treatment of [the claimant] as either a person of advanced age or
closely approaching advanced age under the grids is essentially
theoretical because the ALJ did not rely exclusively on the grids in
making the disability determination. … At step five of the sequential
evaluation process, the ALJ determined that, although the grids would
ordinarily support a finding of “not disabled” in [the claimant’s] case,
the ALJ needed to utilize the VE's testimony to establish whether a
significant number of jobs existed for [the claimant] in the national
economy because [his] ability to perform all or substantially all of the
requirements of light work was impeded by his exertional and
nonexertional limitations. [The claimant] does not challenge the ALJ’s
factual findings with regard to his RFC or the conclusion that he could
not perform a full range of light work. Given the VE’s testimony that
there existed three types of jobs in significant numbers in the national
The ALJ found “[t]ransferability of job skill [wa]s not material to the determination of
disability.” (Doc. 8-3, p. 30).
economy that a person with [the claimant’s] RFC could perform,
substantial evidence supports the ALJ’s conclusion …. As such, the
ALJ’s decision was not made in reliance upon the grids and, thus, a
determination of whether [the claimant] was a person of advanced age
or closely approaching advanced age was not necessary.
Miller v. Comm'r of Soc. Sec., 241 Fed. Appx. 631, 635 (11th Cir. 2007).
Similarly, the ALJ in the present case did not rely on the grids, and the age
determination was unnecessary.
Even if the ALJ had relied exclusively on the grids, Mr. Jackson did not
demonstrate that the ALJ should have considered him in a higher age category.
The evidence proffered by a claimant must “relate to the question of whether h[is]
ability to adapt is less than that established by the grids for persons h[is] age.”
Patterson, 799 F.2d at 1459 (holding evidence relating to educational experience
and the claimant’s RFC were not related). Applying this rule, the court in Miller
found that evidence that the claimant “was only two months short of turning 55 at
the time of the hearing and the ALJ’s decision,” without more, was insufficient to
prompt a revised age classification. 241 Fed. Appx. at 636. Likewise, Mr. Jackson
argues that the ALJ should have deemed him a person approaching advanced age
because he established that he would turn 50 four months after the date of the
decision. That is not enough. “Thus, to the extent that the ALJ relied exclusively
on the grids, the ALJ’s . . . use of the age grids was harmless error.” Id.
II. Consideration of Examining Physician’s Opinion
Mr. Jackson argues that the ALJ erred by not adopting as part of the RFC
finding Dr. Veluz’s opinion that Mr. Jackson is unable squat and has a severely
restricted range of motion in his neck. Mr. Jackson contends that Dr. Veluz’s
findings contradict the ALJ’s conclusion that Mr. Jackson could occasionally
balance, stoop, kneel, crouch and crawl. “[T]he ALJ must state with particularity
the weight given to different medical opinions and the reasons therefor.” Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987)).
Mr. Jackson cites Markell v. Astrue, 2007 WL 4482245 (M.D. Fla. Dec. 19,
2007), in support of his argument that the ALJ failed to give proper weight to Dr.
Veluz’s opinion. 3 In Markell, the District Court for the Middle District of Florida
explained that “[i]f the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not adopted.”
(quoting SSR 96-8p, 1996 WL 374184, *7 (S.S.A.)). The court reasoned that “the
medical record indicates that the ALJ gave great weight to the assessment by two
nonexamining, reviewing doctors who concluded [the claimant] could perform
Mr. Jackson also cites Lambert v. Astrue for this proposition; however, the Lambert court held
“[a]lthough the ALJ referenced this report …, he failed to state what evidentiary weight he was
giving it.” 2008 WL 280848, *2 (S.D. Ala. Jan. 31, 2008). As discussed below, the ALJ
specifically stated the weight given to Dr. Veluz’s findings. See (Doc 8-3, p. 29).
light exertional work and otherwise ignored the assessment by [the examining
physician] to the contrary.” Id. at *4. Thus, the court determined that the ALJ
erred “in not expressly addressing the conclusions of [the examining physician].”
Procedurally, district court opinions are persuasive authority, not binding
authority. Additionally, “Social Security Rulings are not binding on this Court.”
Peeler v. Astrue, 400 Fed. Appx. 492, 496 n.6 (11th Cir. 2010) (citing B.B. v.
Schweiker, 643 F.2d 1069, 1071 (5th Cir. Unit B Apr. 1981)). However, applying
the Markell court’s reasoning, the ALJ did not err in his evaluation of Dr. Veluz’s
opinion. At the July 2010 consultative examination, Dr. Veluz stated “[t]he patient
was unable to squat, heel or toe stand or walk and tandem gait because of pain.”
(Doc 8-9, p. 26). Dr. Veluz also found that Mr. Jackson “had significant limitation
of the cervical disk.” (Doc 8-9, p. 27). The ALJ recounted both of these findings
in his decision. (Doc. 8-3, p. 28).
The ALJ also reported that Mr. Jackson had stated that he “had difficulty
getting up after squatting or bending.” (Doc. 8-3, p. 27; Doc. 8-7, p. 31). On
August 11, 2010, reviewing physician Dr. Heilpern opined that Mr. Jackson could
occasionally balance, stoop, kneel, crouch and crawl. (Doc. 8-3, p. 28; Doc. 8-9, p.
32). The ALJ noted that May 2011 medical records indicate that Mr. Jackson “had
good range of motion of the neck and limited flexion of the lumbosacral spine.”
(Doc. 8-3, p. 28; Doc. 8-9, p. 42). In September 2011, Dr. Thomas Broughton
opined that Mr. Jackson “appeared to be in mild distress, with lower back
tenderness, normal range of motion, and paravertebral tenderness.” (Doc. 8-3, p.
28; Doc. 8-9, p. 51).
Based on this evidence, the ALJ gave “[c]onsiderable weight … to [Dr.
Veluz’s] clinical findings, which are not inconsistent with a sedentary residual
functional capacity.” (Doc. 8-3, p. 29). Thus, the ALJ offered sufficient reasons
for his finding that Mr. Jackson could occasionally balance, stoop, kneel, crouch
and crawl. See Smith v. Astrue, 2011 WL 843969, *10 (M.D. Fla. Feb. 18, 2011)
report and recommendation adopted sub nom. Smith v. Comm'r of Soc. Sec., 2011
WL 843544 (M.D. Fla. Mar. 8, 2011) (“Here, the ALJ does not completely ignore
medical evidence contrary to her conclusions, nor does she fail to expressly
articulate the reasons why such medical evidence was not adopted. Contrary to the
Plaintiff's allegations, the ALJ both referenced and articulated reasons for
discounting contrary medical evidence.”); see also Ogletree v. Colvin, 2013 WL
6169161, *2 (M.D. Ga. Nov. 25, 2013) (“In Markell, the court reversed the
Commissioner's denial of benefits because the ALJ did not explain either the
weight accorded to a consulting physician's opinion or the reason for according it
that weight.”). Here, the ALJ cited multiple pieces of evidence that support his
RFC finding and his decision not to adopt all of Dr. Veluz’s opinions. Substantial
evidence supports these findings.
In any case, any error by the ALJ in his evaluation of the Dr. Veluz’s
opinion about Mr. Jackson’s ability to squat would be harmless. The jobs listed by
the VE do not require the claimant to balance, stoop, kneel, crouch or crawl. See
DOT Listing No. 734.687-018 available at DICOT § 734.687-018 (categorizing
these activities as “Not Present - Activity or condition does not exist”); DOT
Listing No. 559.687-014 available at DICOT § 559.687-014 (same); DOT Listing
No. 739.687-182 available at DICOT § 739.687-182 (same). Thus, even if the
ALJ erred, the error would not require reversal of the Commissioner’s decision.
See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of
administrative law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand might lead to a
Mr. Jackson also contends that the ALJ erred in his evaluation of Dr.
Veluz’s opinion because the ALJ ignored a May 2010 MRI of the lumbar spine.
At the hearing, the ALJ stated “I’m really kind of trying to figure out where the
consultative examination got an indication that there was perhaps a more severe
pathology [disk herniation at L5, S1] in the lumbar spine than would otherwise be
suggested based on the radiological evidence at [Doc. 8-9, pp. 49-62].” (Doc. 8-3,
p. 46). The ALJ and the attorney did not locate the May MRI at the hearing;
however, the ALJ did note and summarize the May 2010 MRI of the lumbar spine
in his written decision. He stated “[i]maging of the lumbar spine revealed a disc
herniation at L5-S1 on the right, which appeared to slightly efface the right S1
nerve root.” (Doc. 8-3, p. 27). This statement mirrors the May 2010 MRI and Dr.
Veluz’s report. (Doc. 8-9, pp. 22, 25). The ALJ also took into account Dr.
Heilpern’s report, which noted the MRI. (Doc. 8-9, p. 31). The ALJ properly
considered the May 2010 MRI of the lumbar spine in his evaluation of Dr. Veluz’s
III. Pain Standard
Finally, Mr. Jackson argues that the ALJ’s mischaracterization of his lumbar
spine problems demonstrates that the ALJ could not have properly applied the pain
standard. “[T]o show a disability based on subjective pain testimony, ‘the claimant
must satisfy two parts of a three-part test showing: (1) evidence of an underlying
medical condition; and (2) either (a) objective medical evidence confirming the
severity of the alleged pain; or (b) that the objectively determined medical
condition can reasonably be expected to give rise’ to the claimed symptoms.”
Powell v. Comm’r of Soc. Sec., 2014 WL 3377650, at * 1, --- Fed. Appx. ---- (July
11, 2014) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002)). A
claimant’s testimony coupled with evidence that meets this standard “is itself
sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991) (citation omitted).
“If the Secretary refuses to credit such
testimony, he must articulate explicit and adequate reasons.” Hale v. Bowen, 831
F.2d 1007, 1011 (11th Cir. 1987).
In the present case, the ALJ properly applied the pain standard. He found
that Mr. Jackson’s medical condition met the pain standard, but Mr. Jackson’s
testimony was not credible. The ALJ then articulated “explicit and adequate
reasons” for declining to find that Mr. Jackson is disabled. Hale, 831 F.2d at 1011.
As explained in detail above, the ALJ properly considered Mr. Jackson’s May
2010 MRI of the lumbar spine. Consequently, Mr. Jackson’s arguments that the
ALJ “ignor[ed] uncontroverted objective medical evidence” and failed to analyze
his testimony “with the far more severe results of the lumbar MRI” are not
persuasive. (Doc. 12, p. 12). Furthermore, substantial evidence supports the
ALJ’s decision to discredit Mr. Jackson’s testimony. The ALJ found:
The claimant essentially alleges that he is unable to work due to the
severity of his chronic pain. However, he has not had consistent
treatment over the past year, and between 2010 and 2011 went 11
months without treatment. The claimant’s spinal deficits, while
significant, do not support his alleged degree of disability. The
claimant’s alleged limitations of the neck are supported by prior
surgery, but his treatment notes indicate he had good results from his
surgery. While there is evidence of a more recent disc herniation at
C6-7, there is no evidence of any acute compromise of the spinal cord
or nerve root compression. The radiological evidence supports no
more tha[n] mild lumbar degenerative joint disease or degenerative
disc disease, with no evidence of any acute compromise of the spinal
cord or nerve root compression. There is nothing in the claimant’s
rehabilitation notes at [(Doc. 8-8, pp. 206-55)], the orthopedic
consultative examiner’s findings at [(Doc. 8-9, pp. 304-10)], or in the
claimant’s treating physician notes at [(Doc. 8-9, pp. 302-03, pp. 31929 or pp. 330-43)] that would preclude the performance of sedentary
work. Further, the claimant’s reported activities of daily living,
including work in the yard, his functional abilities reported to
Disability Determination Services in [(Doc. 8-7, pp. 177-86)], and
reported moderate pain levels with conservative treatment, are all
indicate [sic] he can sustain sedentary work.
(Doc. 8-3, pp. 28-29).
Mr. Jackson argues that the analysis would have changed if the ALJ had
found that he suffered from disk herniation of the lumbar spine rather than from
mild degenerative disc disease of the lumbar spine. (Doc. 12, p. 13). 4 However,
substantial evidence supports the finding that Mr. Jackson suffered only from mild
degenerative disc disease. In May 2011, “[d]iagnostic imagining of the claimant’s
lumbar spine revealed mild degenerative changes without further significant
(Doc. 8-3, p. 28; Doc. 8-9, p. 47).
In September 2011, another
diagnostic image report indicated mild degenerative changes and “no structural
defects.” (Doc. 8-9, p. 57). The ALJ noted both of these reports in his decision.
(Doc. 8-3, p. 28).
Therefore, substantial evidence supports the ALJ’s
determination that the claimant suffered from mild degenerative disc disease of the
This argument is perplexing, given that the ALJ already found that Mr. Jackson’s condition
could reasonably cause the alleged symptoms. (Doc. 8-3, p. 28). The limited credibility given to
Mr. Jackson’s testimony did not turn on the absence of a herniated disk.
The ALJ applied the pain standard using the correct legal
standards, and his decision to discredit Mr. Jackson’s testimony was based on
For the reasons outlined above, the Court concludes that the ALJ’s decision
is based upon substantial evidence, and the ALJ applied proper legal standards.
The Court will not reweigh the evidence or substitute its judgment for that of the
Accordingly, the decision of the Commissioner should be
affirmed. The Court will enter a separate order consistent with this memorandum
DONE and ORDERED this September 25, 2014.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
“Because a herniated disk desiccates and shrinks over time, symptoms tend to abate regardless
of treatment. Up to 85% of patients with back pain—regardless of cause—recover without
surgery within 6 [weeks].” The Merck Manual of Diagnosis and Therapy, Herniated Nucleus
Pulposus, available at
nd_motor_unit_disorders/herniated_nucleus_pulposus.html (last visited February 13, 2014).
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