Wilson v. Social Security Administration, Commissioner
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/30/2018. (KAM)
FILED
2018 Jul-30 PM 05:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KARLA WILSON,
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No. 2:17-cv-01280-JEO
MEMORANDUM OPINION
Plaintiff Karla Wilson brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Acting Commissioner of Social Security
(“Commissioner”) denying her Disability Insurance Benefits (“DIB”). (Doc. 1).1
The case has been assigned to the undersigned United States Magistrate Judge
pursuant to this court’s general order of reference. The parties have consented to
the jurisdiction of this court for disposition of the matter. See 28 U.S.C. § 636(c),
FED. R. CIV. P. 73(a). Upon review of the record and the relevant law, the
undersigned finds that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed her application for DIB in December 2013, alleging disability
1
References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
beginning July 2, 2012. It was initially denied by an administrative law judge
(“ALJ”). The Appeals Council (“AC”) denied Plaintiff’s request for review. (R.
1). 2
II. FACTS
Plaintiff was 47 years old at the time of the ALJ’s decision. (R. 39). She
has completed the sixth grade. She previously worked as a mail carrier,
appointment clerk, medical record clerk, and cashier. (R. 23, 191). She alleges
disability due to chronic back and leg pain as well as major anxiety and depression.
(R. 84).
Following Plaintiff’s hearing, the ALJ found that she had the medically
determinable severe impairments of migraine headaches; cervical disc
degeneration; anxiety disorder, not otherwise specified (“NOS”); and depression,
NOS. (R. 15). He also found that Plaintiff did not have an impairment or
combination of impairments that met or equaled the severity of a listed
impairment. (R. 16). He further found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work with limitations. (R. 15). He determined
that Plaintiff could not perform her past relevant work but could perform the
2
References herein to “R. __” are to the administrative record found at Docs. 7-1 through
7-12 in the court’s record.
2
requirements of representative occupations such as Marker, Router, or Electrical
assembler. (R. 23-24). The ALJ concluded that Plaintiff was not disabled. (R.
24).
III. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Mitchell v. Comm’r Soc. Sec., 771 F.3d 780, 782 (11th Cir.
2015; Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court must
“scrutinize the record as a whole to determine if the decision reached is reasonable
and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. It is
“more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
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the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). The court must affirm the
ALJ’s decision if substantial evidence supports it, even if other evidence
preponderates against the Commissioner’s findings. See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir.1990)).
IV. STATUTORY AND REGULATORY FRAMEWORK
To qualify for benefits a claimant must show 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. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 1382c(a)(3)(D).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. § 416.920(a)(4). Specifically, the Commissioner must
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determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe 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 light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014).3 The
plaintiff bears the burden of proving that he was disabled within the meaning of the
Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); see
also 20 C.F.R. § 404.704. The applicable “regulations place a very heavy burden
on the claimant to demonstrate both a qualifying disability and an inability to
perform past relevant work.” Id.
V. DISCUSSION
Plaintiff asserts that the ALJ erred in that he (1) failed to properly evaluate
the credibility of the Plaintiff’s complaints of pain consistent with the Eleventh
Circuit Pain Standard and (2) failed to properly weigh the opinions of the
Plaintiff’s treating physician, Dr. Bryan McClelland. (Doc. 9 at 4, 10). As part of
this appeal, Plaintiff argues that the ALJ failed to articulate reasons or show good
3
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
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cause for each decision. (Id.) The Commissioner argues that the ALJ properly
evaluated Plaintiff’s complaints of disabling symptoms and the treating physician’s
opinions and that substantial evidence supports his conclusion that Plaintiff is not
disabled. (Doc. 10 at 1).
A.
Plaintiff’s Complaints of Pain
As noted above, Plaintiff bears the burden of proving that she is disabled
within the meaning of the Social Security Act. See 20 C.F.R. § 419.912(a) & (c);
Moore, 405 F.3d at 1211; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
Specifically, Plaintiff must provide evidence of an underlying medical condition
and either objective medical evidence confirming the severity of the alleged
symptoms or that the medical condition could be reasonably expected to give rise
to the alleged symptoms. See 20 C.F.R. § 419.929; Dyer v. Barnhart, 359 F.3d
1206, 1210 (11th Cir. 2005); Wilson, 284 F.3d at 1225-26; Edwards v. Sullivan,
937 F.2d 580, 584 (11th Cir. 1991). In analyzing the evidence, the focus is on how
an impairment affects Plaintiff’s ability to work, and not on the impairment itself.
See 20 C.F.R. § 416.929(c)(1); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986) (severity of impairments must be measured in terms of their effect on the
ability to work, not from purely medical standards of bodily perfection or
normality).
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In addressing Plaintiff’s subjective description of pain and symptoms, the
law is clear:
In order to establish a disability based on testimony of pain and other
symptoms, 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 pain. See Holt
v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the ALJ
discredits subjective testimony, he must articulate explicit and
adequate reasons for doing so. See Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987). Failure to articulate the reasons for
discrediting subjective testimony requires, as a matter of law, that the
testimony be accepted as true. See Cannon v. Bowen, 858 F.2d 1541,
1545 (11th Cir. 1988).
Wilson, 284 F.3d at 1225; see also 20 C.F.R. §§ 404.1529, 416.929. In
determining whether substantial evidence supports an ALJ’s credibility
determination, “[t]he question is not . . . whether the ALJ could have reasonably
credited [the claimant’s] testimony, but whether the ALJ was clearly wrong to
discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir.
2011).
When evaluating a claimant’s statements regarding the intensity, persistence,
or limiting effects of her symptoms, the ALJ considers all the evidence – objective
and subjective. See 20 C.F.R. § 416.929(c)(2). A plaintiff cannot simply allege
disabling symptoms. See 20 C.F.R. § 416.929(a) (“statements about your pain and
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other symptoms will not alone establish that you are disabled”). The ALJ may
consider the nature of a claimant’s symptoms, the effectiveness of medication, a
claimant’s method of treatment, a claimant’s activities, measures a claimant takes
to relieve symptoms, and any conflicts between a claimant’s statements and the
rest of the evidence. See 20 C.F.R. § 416.929(c)(3), (4). The ALJ is not required
explicitly to conduct a symptom analysis, but the reasons for his or her findings
must be clear enough that they are obvious to a reviewing court. See Foote v.
Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). “A clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by
a reviewing court.” Id. (citation omitted).
Here, the ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to produce her alleged symptoms, but that Plaintiff’s
statements concerning the intensity, persistence, and limiting effects were not
credible to the extent they conflicted with her RFC for a modified range of light
work. (R. 19). The court agrees and the record supports this conclusion.
With regard to Plaintiff’s migraines, she testified at her hearing that she had
them for over a year and that she had one at least two to three times a month. (R.
65-66). However, Dr. McClelland noted at Plaintiff’s most recent appointment in
December 2015 that her migraines were stable. (R. 637). This is consistent with
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Plaintiff’s March 2015 appointment during which she stated that her headaches
were much better and she had not experienced one for “probably six weeks.”4 (R.
586). Thus, the ALJ’s finding that her migraines were under control (R. 19) is
supported by the record.
With regard to her back impairments, the evidence establishes that Plaintiff
complained of back and leg pain in January 2013. (R. 275). She reported sharp
pain between her shoulder blades on February 22, 2013. (R. 274). Radiographs
taken on February 26, 2013, evidenced normal findings in her cervical spine. (R.
329). August 7, 2013 MRIs of Plaintiff’s cervical and thoracic spine showed mild
degenerative changes. (R. 320, 518). A May 18, 2014 CT scan of her cervical
spine and a July 15, 2014 MRI of Plaintiff’s lumbar spine evidenced no significant
abnormality. (R. 501, 507). Plaintiff underwent two cervical epidurals on August
13, 2013 and May 13, 2014. (R. 248, 406, 517). After the second injection,
Plaintiff came back to Dr. McClelland for back pain and he continued to treat her
with prescription medication. (R. 533). Medical records concerning Plaintiff’s
complaints from October 2015 state that her back pain was increasingly disabling
to her. (R. 619). However, at Plaintiff’s December 2, 2015 visit, Dr. McClelland
4
Plaintiff reported a severe migraine during middle January 2015 on January 26, 2015.
(R. 591).
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noted that there was no need for surgical intervention and that her straight leg raise
test was within normal limits. (R. 637).
Plaintiff testified at her hearing that she had chronic neck and back pain,
which caused her to have to lie down three to four hours a day and that the pain
worsens when she is active. (R. 46, 55). The ALJ found that nothing in the record
indicated that Plaintiff’s pain or other symptoms would result in absences from
work four days a month. (R. 19). The ALJ also noted that at Plaintiff’s hearing,
she had no issue with gait entering or leaving the hearing and that she went to and
rose from her chair in an easy, fluid movement. (R. 19). Thus, the ALJ’s
statement that “[t]he modest findings and conservative treatment … suggest that
[Plaintiff’s] pain is not as severe as alleged,” is supported by the record. (R. 20).
Plaintiff has not adequately challenged this finding.
Plaintiff further alleges that the ALJ erred in determining that her mental
impairments were not as severe as alleged. (Doc. 9 at 8). Dr. McClellan
diagnosed Plaintiff with depression and anxiety in about January 2015. (R. 621).
Upon referral from Dr. McClellan, Plaintiff went to see Dr. Gayle Vance on July 8,
2015, and was diagnosed with Dystymia and Anxiety Disorder, not otherwise
specified. (R. 613-616). However, Plaintiff did not return to counseling after this
date and continued only seeing Dr. McClelland. On her December 2, 2015 visit,
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Dr. McClelland noted that although she was fixated on her neck and low back pain,
her current primary problem was her posttraumatic stress disorder with depression,
anxiety, panic, and social phobia. (R.637).
The ALJ noted in his decision that Dr. McClelland stated in his October
2015 progress notes that although his office made appointments for Plaintiff to see
a counselor for her mental health issues, she never followed up on the referrals.
(R. 19 (citing R. 620)). After reviewing the record, the court finds, as just noted,
that Dr. McClelland’s statement is not totally accurate. Plaintiff did see Dr. Vance
once on July 8, 2015. (R. 613-17). The record does not show any prior or
subsequent interaction with Dr. Vance.
Additionally, on March 24, 2014, Plaintiff had a psychological evaluation
by Dr. Sharon D. Waltz. She noted Plaintiff’s “ability to understand, to carry out
and to remember instructions and to respond appropriately to supervision, coworkers and work pressures in a work setting, despite her impairments is fair with
appropriate tasks and treatment.” (R. 399). The ALJ gave this opinion great
weight because it was formed by a psychologist after a thorough examination and
is consistent with the clinical and objective medical evidence in the record. (R.
21). The ALJ also gave substantial weight to the opinion given by state agency
medical consultant Dr. Robert Estock, who determined Plaintiff “would be
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expected to understand, remember, and carry out short simple instructions and
tasks but would likely have difficulty with more detailed tasks and instructions.”
(R. 95). Dr. Estock also concluded that Plaintiff would have maximum
concentration in a well-spaced work environment and that she would “likely miss
1-2 days/month due to psych symptoms.” (R. 96). The ALJ gave great weight to
this opinion because it was consistent with the majority of the record, psychiatry is
Dr. Estock’s specialty, and he has programmatic knowledge in the relevant area.
(R. 22).
The question for this court is whether the ALJ adequately has explained his
reasoning and whether it is supported by substantial evidence. See Dyer v.
Barnhart, 395 F.3d 1206, 1212 (11th Cir. 2005). Plaintiff argues that the ALJ’s
interpretation of the medical evidence was not supported by substantial evidence
and the ALJ did not properly consider her longitudinal treatment history which
documents her consistent complaints of and treatment for her pain. (Doc. 9 at 6).
The court does not agree.
The ALJ adequately explained his reasons for finding that Plaintiff’s
testimony regarding her pain and limitations was only partially credible, and his
reasoning is supported by the record. It shows (1) that Plaintiff’s migraines had
become stable; (2) the cervical degeneration in her spine was mild, she did not
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need surgery; (3) her straight leg raise test was within normal limits; and (4) her
mental limitations were mild to moderate. (R. 19, 95, 320, 637). Additionally,
Plaintiff’s reported daily activities support the ALJ’s determination. Plaintiff
reported that she takes care of pets, is able to vacuum, dust, do laundry, grocery
shop and cook on a daily basis. (R. 17, 201-05). Finally, there is no medical
evidence that Plaintiff is disabled or has limitations in excess of the RFC
determined by the ALJ. (R. 19).
B.
Medical Opinion of Dr. McClelland
Plaintiff next argues that the ALJ failed to properly articulate good cause for
according less weight to the opinions of Dr. McClelland, as Plaintiff’s treating
physician, in finding Plaintiff was not disabled. (Doc. 9 at 10). Plaintiff has been
seeing Dr. McClelland at Alabama Family Medicine for pain management since
about 2005. (Id. at 13; R. 389). On December 5, 2013, Dr. McClelland wrote on a
prescription that Plaintiff is totally and permanently disabled with (1) cervical
spinal stenosis, (2) sciatica and chronic back pain, (3) knee and ankle osteoarthritis,
(4) chronic plantar fasciitis, and (5) major depression. (R. 630 & 632). On
October 20, 2015, Dr. McClelland completed a Physical Capacity Evaluation
(“PCE”) regarding Plaintiff’s ability to do work related activates. He stated she
could do the following during an 8-hour workday: sit for a total of 6 hours; stand
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for a total of 1 hour and walk up to 1 hour. (R. 627).
The ALJ gave these opinions little weight because they were inconsistent
with evidence in the record including Dr. McClelland’s treatment notes. The ALJ
stated that at Plaintiff’s December 2, 2015 examination, her straight leg raise test
was within normal limits and Dr. McClelland found a full range of motion in her
back. (R. 21, 637). Dr. McClelland also stated that “although [Plaintiff] is fixed
on her chronic neck and low back pain, currently her primary problem is her
posttraumatic stress disorder with depression, anxiety…” (Id.) The ALJ further
stated that the December 5, 2013 statement that Plaintiff is “permanently disabled”
can only be given little weight because it is an issue reserved to the commissioner.
(R. 22). The ALJ concludes that “Dr. McClelland’s statement indicating the
claimant is permanently disabled is not a medical opinion, but rather an
administrative finding dispositive of a case. These issues are reserved to the
Commissioner, and as such are not entitled to any specific weight.” (R. 22 citing
20 CFR 404.1527(e)(1)(3) and 416.927(e)(1)(3)).
A treating physician’s opinion “must be given substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir.1997). The Eleventh Circuit Court of Appeals has stated that
“good cause” exists when the: (1) treating physician’s opinion was not bolstered by
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the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). In rejecting a
medical opinion, the ALJ must clearly articulate his or her reasons for doing so.
Id.
After reviewing the record, the court finds that it does not support Dr.
McClelland’s opinions regarding Plaintiff’s very limited abilities during a workday
or the conclusion that Plaintiff is “totally and completely disabled.” As noted
above, Plaintiff’s MRIs only show mild spinal degenerative changes; her straight
leg raise test was within normal limits; Dr. McClelland did not see a need for
surgical intervention; and Dr. McClelland found that there was a full range of
motion in Plaintiff’s back at her December 2, 2015 examination. Additionally, the
court finds that the ALJ correctly determined that Plaintiff reported in her Function
Report that she takes care of pets, is able to vacuum, dust, do laundry, grocery shop
and cook on a daily basis. (R. 17, 201-05).
To the extent Dr. McClelland states in December 2013 that Plaintiff is
“disabled,” the court finds this conclusion is not entitled to any weight because it is
a decision reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)( Medical
source opinions on issues reserved to the Commissioner); Bell v. Bowen, 796 F.2d
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1350, 1353-54 (11th Cir. 1986) (“although a claimant’s physician may state he is
‘disabled’ or ‘unable to work’ the agency will nevertheless determine disability
based upon the medical findings and other evidence”); see also Lewis, 125 F.3d at
1440 (“we note that we are concerned here with the doctors’ evaluations of
Lewis’s condition and the medical consequences thereof, not their opinions of the
legal consequences of his condition.”) and 20 C.F.R. § 404.1527(e)(1) (“A
statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that we will determine that you are disabled.”).
Plaintiff relies heavily on the fact that she had a long history of treatment
with Dr. McClelland. (Doc. 9 at 10-12). While that is true and important, it
simply is not sufficient in this instance. Many of Plaintiff’s references in her brief
in support of her argument are cites to her subjective assessment of her situation
and not medical tests or assessments. (See e.g. Doc. 9 at 11 (citing R. 260-389;
448-89; 490-564; 565-578; 579-611; 6180625; 633-638) listing her complaints of
and treatment for pain and depression).5 Plaintiff argues that the ALJ is
5
Plaintiff provided specific examples as well:
For example, treatment notes form December 5, 2013 document the Plaintiff’s
report of back pain which was increased with standing and she was unable to
stand for more than 30 minutes and her legs get weak and buckle. (R.262,
emphasis added). The Plaintiff’s pain was described as severe. (R.453, emphasis
added). On January 26, 2015 it was noted that the Plaintiff has chronic neck and
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disregarding the other opinions of Dr. McClelland based on his narrow
interpretation of Dr. McClelland’s December 2, 2015 treatment note. (Doc. 9 at
12). That is not a fair assessment of the ALJ’s decision. It is not based solely on
the December 2, 2015, treatment notes, but upon a full review of all the medical
records. Additionally, the form itself demonstrates that the reported opinions, at
least in part, were simply Plaintiff’s reports to Dr. McClelland about what she
could do. (See R. 637 (noting that “pt reports” severely-limited standing and
walking abilities)).
In sum, the court finds that while the record documents Plaintiff’s
complaints of chronic back pain, it also supports the ALJ’s finding that Plaintiff is
not as limited as she alleges and his RFC determination that she can perform light
work with various limitations. Plaintiff’s challenges do not adequately refute the
ALJ’s determination that she is not disabled.
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the decision
of the Commissioner is due to be affirmed. An appropriate order will be entered
back pain which stop her from doing activities except in short bursts. (R.591).
Records from October 2015 show the Plaintiff’s back pain was “increasingly
disabling her.” (R.619 emphasis added).
(Doc. 9 at 11-12).
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separately.
DONE, this the 30th day of July, 2018.
______________________________
JOHN E. OTT
Chief United States Magistrate Judge
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