Wallace v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 1/25/16. (SAC )
2016 Jan-25 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social
CIVIL ACTION NO.
Plaintiff Angela Wallace brings this action pursuant to 42
U.S.C. § 405(g), seeking judicial review of the Commissioner’s
final decision denying her applications for supplemental security
income and disability insurance benefits. Wallace timely pursued
and exhausted the administrative remedies available to her before
the Social Security Administration. Based on the court’s review of
the record and the briefs submitted by the parties, the court finds
that the Commissioner's decision is due to be affirmed.
STATUTORY AND REGULATORY FRAMEWORK
claimant must, inter alia, show that she is disabled. 42 U.S.C. §§
423(a)(1)(D), 1381a (2012). A person is disabled if she is unable
“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. §§ 423(d)(1)(A), 1382c(a)(3)(A) (2012). To determine if a
claimant is disabled, the Social Security Administration employs a
416.920(a)(4)(i)-(v). A conclusive finding may be made at each
step; if not, the Commissioner’s review continues to the next step.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
First, the Commissioner must determine whether the claimant is
currently engaged in any substantial gainful activity. If so, the
416.920(a)(4). Second, the Commissioner must determine whether the
claimant has “a severe medically determinable physical or mental
impairment” expected to result in death or to last at least one
404.1520(a)(4)(ii), 416.920(a)(4)(ii). Third, the Commissioner must
determine if any of the claimant’s impairments meets or exceeds the
requirements of an impairment within the Listing of Impairments,
found at 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the
If the Commissioner has not made a conclusive determination
after the third step, she must assess the claimant’s Residual
416.920(a)(4). The RFC measures the claimant’s ability to work in
Fourth, the Commissioner must determine if the claimant’s RFC
allows her to perform her past relevant work. If so, the claimant
416.920(a)(4)(iv). Fifth, the Commissioner must determine whether
there exist a significant number of jobs in the national economy
that the claimant’s RFC allows her to perform. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1560(c), 416.920 (a)(4)(v), 416.960(c). If
a significant number of such jobs exist, the claimant is not
disabled; if not, she is disabled. Id.
supplemental security income on November 8, 2011. (R. at 176-77).
She alleges that she became disabled on October 31, 2009. (R. at
176). Wallace testified that she is unable to work primarily due to
fibromyalgia (causing pain in her neck, shoulders, hips, feet,
hands, and elbows), herniated discs in her neck (causing hand
numbness and neck pain), anxiety, and depression. (R. at 46, 61).
Wallace testified that these impairments cause her severe
physical and mental difficulties. According to Wallace, she remains
in bed 15-20 days per month, and the other days she does little
more than sit in a recliner while occasionally watching television
or smoking. (R. at 66-67, 74). Wallace attributes these limitations
primarily to her depression. (R. at 67). She testified that she is
in constant pain, which she rated at 8 or 9 on a 0 to 10 scale,
primarily due to fibromyalgia. (R. at 61-63). When treated by
medication, she rated the pain at 6. (R. at 63). She testified that
she can dress herself, shower, make the bed, do laundry, use a
computer for short periods, drive, shop, lift and carry small
difficulty walking for extended periods, cooking, washing dishes,
vacuuming, thoroughly cleaning the house, using a computer for
extended periods, and doing yard work. (R. at 55, 63-65, 71).
Wallace previously indicated in her Adult Function Report that she
can brush her teeth; brush her hair; daily prepare sandwiches,
salads, and microwavable foods; sweep, vacuum, and dust weekly;
drive; grocery shop weekly, for about an hour; and handle money.
(R. at 226-30). Wallace smokes cigarettes, consuming a pack of
cigarettes in about three days. (R. at 55). She sleeps with splints
on her hands to alleviate her issues with hand numbness. (R. at 4748). She underwent neck surgery in 2012 because of the herniated
discs in her neck. (R. at 451).
Wallace testified that she has been diagnosed with bipolar
anxiety disorder and depression. (R. at 48). While she has never
received inpatient psychiatric care, from the record it appears
that she has twice seen a psychiatrist, once before and once after
the ALJ hearing. (R. at 57). That psychiatrist submitted a note
stating that Wallace will need to be in outpatient counseling. (R.
at 453). She had previously seen her primary care doctor, Dr.
Jotani, for her mental issues, and he treated her by prescribing
Prozac and Xanax. (R. at 56-57, 431). Before the hearing, Dr.
Jotani opined that he believed Wallace suffers from “significant
psychological problems which keep her physically and emotionally
from doing her job.” (R. at 272). Wallace claims to have gained 100
pounds in the six months leading up to the hearing, primarily
because of her depression and medication. (R. at 49). She also
claims to have a greatly diminished social life because of the
effect of her impairments on her demeanor. (R. at 54, 231).
Wallace testified to having an extreme panic attack that
caused her to lose control of her vehicle. (R. at 51-52). She also
testified that she was hospitalized for a mental breakdown, which
led to termination from her last employment as a manager at a golf
club. According to Wallace, her employer told her that she could
not return to work until she recovered, but she never did. (R. at
69). She decided not to seek any more work because of her physical
pain and depression. (R. at 70). The record contains evidence of
two hospitalizations for mental issues, one in June 2009 that the
ALJ characterized as an allergic reaction to medication (R. at
318), and one in August 2009 in which Wallace presented with chest
pain and severe anxiety (R. at 326-27). In the second visit,
records show that THC (marijuana) was indicated. (R. at 326).
disabled. (R. at 19). He began by conceding that Wallace had not
engaged in substantial gainful activity since the onset date and
fibromyalgia, osteoarthritis, possible mild carpal tunnel syndrome,
impairments met or exceeded a listing. (R. at 21-22). The ALJ next
determined Wallace’s RFC, which he listed as follows:
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), except the claimant can occasionally push and
pull with her upper and lower extremities bilaterally.
She can occasionally bend, balance, stoop, kneel, crouch
and crawl. She can never climb ladders, ropes or
scaffolds. She can frequently handle, finger and feel.
She should avoid concentrated exposure to cold, heat,
wetness, humidity, vibrations, noise, fumes, odors, dust
and gas. She should avoid all exposure to unprotected
heights, dangerous machinery, and uneven surfaces. She is
restricted to unskilled, low stress work. She can have
supervisors and co-workers.
(R. at 24). To the extent Wallace’s testimony contradicted this
finding, the ALJ found the testimony not credible for the varied
reasons discussed below. (R. at 26-31).
Based on the RFC finding, the ALJ found that Wallace was
unable to perform any past relevant work but that jobs existed in
significant numbers in the national economy that she could perform.
(R. at 31-32). The ALJ based these determinations on the testimony
of the vocational expert, who testified that a hypothetical person
in Wallace’s position with the RFC described above could find and
Solderer. (R. at 32-33). The VE testified that a hypothetical
person with limitations similar to those testified to by Wallace
would be precluded from all work. (R. at 83-85). Finding the first
hypothetical to better correspond to the previously determined RFC,
the ALJ found Wallace not to be disabled. (R. at 33). Wallace
appealed the ALJ’s decision, but the Appeals Council denied review.
(R. at 1).
A. Standard of Review
“[R]eview of the Commissioner’s decision is limited to an
inquiry into whether there is substantial evidence to support the
findings of the Commissioner, and whether correct legal standards
were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). Review of the Commissioner’s factual findings is highly
deferential; “[i]f the Commissioner’s decision is supported by
preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004) (quoting Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996)). “Substantial evidence is more than a
scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.” Bloodsworth v. Heckler, 703 F.3d 1233, 1239 (11th
Cir. 1983). “A ‘substantial evidence’ standard, however, does not
permit a court to uphold the [Commissioner's] decision by referring
only to those parts of the record which support the ALJ. A
reviewing court must view the entire record and take account of
evidence in the record which detracts from the evidence relied on
by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.
[Commissioner's] findings of fact, the [Commissioner's] conclusions
of law, including applicable review standards, are not presumed
valid.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
Such conclusions of law are reviewed de novo. Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). “The
[Commissioner's] failure to apply the correct legal standards or to
determination that proper legal principles have been followed
mandates reversal.” Martin, 894 F.2d at 1529.
B. Substantial Evidence Supports the Commissioner’s Decision
Wallace does not challenge any legal standards applied by the
ALJ or the decision of the Appeals Council to deny review. Instead,
she only contends that the ALJ’s decision that she is not disabled
is not supported by substantial evidence. Specifically, Wallace
physician’s letter, in which he opined that Wallace’s mental
impairments preclude her from working and (2) the VE’s testimony
shows that she is unable to perform any jobs.1 Wallace’s challenge
implicates only two steps of the ALJ’s analysis: the ALJ’s RFC
finding and his conclusion that jobs exist that Wallace could
perform. The court finds that the ALJ’s decision is supported by
1. The ALJ’s RFC Finding is Supported by Substantial Evidence
In making his RFC finding, the ALJ considered all the evidence
submissions, medical records, evaluations of Wallace by various
physicians, and statements made by her physicians and former
employer. Wallace testified to limitations much more severe than
those found by the ALJ, but the ALJ rejected much of her testimony
concerning her pain and limitations. An ALJ may do this only under
what is known as the “pain standard.” Eleventh Circuit precedent
“requires that an ALJ apply a three part ‘pain standard’ when a
claimant attempts to establish disability through his or her own
testimony of pain or other subjective symptoms.” Foote v. Chater,
In her statement in support of benefits, Wallace also
references and attaches a letter from a physician dated September
23, 2015, detailing her current diagnosis. (Doc. 8). The court,
however, cannot consider any evidence not first presented to the
Commissioner unless it is presented as part of a request for a
remand to the Commissioner to allow for consideration of the new
evidence, known as a Sentence Six remand under 42 U.S.C. §
405(g). See Ingram, 496 F.3d at 1267-68. Because Wallace has not
requested a Sentence Six remand, the court will not consider the
67 F.3d 1553, 1560 (11th Cir. 1995).
The pain standard requires (1) evidence of an underlying
medical condition and either (2) objective medical
evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively
determined medical condition is of such a severity that
it can be reasonably expected to give rise to the alleged
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The
standard seeks to ensure that objective medical evidence confirms
symptoms complained of by the plaintiff.
If the plaintiff’s testimony satisfies this standard, the ALJ
may still discredit the testimony, but he “must articulate explicit
and adequate reasons for doing so,” Foote, 67 F.3d at 1561-62, and
“such articulation of reasons by the [ALJ must] be supported by
substantial evidence,” Hale v. Bowen, 831 F.2d 1007, 1012 (11th
Cir. 1987). “Failure to articulate the reasons for discrediting
subjective testimony,” or a failure to support those reasons by
substantial evidence, “requires, as a matter of law, that the
testimony be accepted as true.” Wilson, 284 F.3d at 1225.
determinable impairments could reasonably be expected to cause the
alleged symptoms,” thus satisfying the requirements of the pain
standard. (R. at 26). The ALJ found, however, that Wallace’s
subjective testimony was not credible for various reasons. The
court finds that the ALJ’s given reasons were explicit, adequate,
and supported by substantial evidence.
The ALJ began by discussing Wallace’s complaints of hand pain.
He discounted her relevant testimony because, in his view, (1)
Wallace made no persistent complaints of hand pain, (2)
hand abnormalities are noted in the medical records, and (3)
medical evaluations found no deficits and good hand strength and
abilities. (R. at 28). The record contains three complaints of hand
issues during or around the alleged period of disability. In
October and November 2008, Wallace saw a hand specialist and
complained of wrist pain and hand numbness. The doctor observed
some wrist tenderness but found no abnormalities apart from a small
(apparently unrelated) cyst on her finger. Wallace was given
injections for the wrist pain and splints to wear while she slept
to address the numbness. (R. at 446-48). In November 2009, Wallace
complained of swollen hands. (R. at 364). In May 2010, she again
complained of hand pain, but once again no abnormalities were
identified. (R. at 338). In January 2012, during the course of her
disability examination, the examining physician noted no abnormal
swelling or limitation of motion, strong handgrip, and abilities to
doorknob. (R. at 428-29).
discrediting Wallace’s testimony of hand pain is supported by
substantial evidence. While Wallace complained three times of hand
pain during or shortly before the alleged disability period, this
number pales in comparison to the persistence of complaints of
neck, shoulder, and back pain, and the ALJ aptly noted this
discrepancy. The ALJ is also correct that the medical records show
no significant abnormalities or limitations, and the disability
evaluation, in finding several hand abilities and no abnormalities
or limitations, supports this conclusion. While Wallace saw a hand
specialist in 2008, this occurred before the alleged onset date,
and no subsequent complaints of hand numbness are present in the
The ALJ next discounted Wallace’s testimony regarding her pain
due to fibromyalgia and herniated discs because the medical records
contain no evidence of significant limitations. (R. at 28). Unlike
Wallace’s hand pain, the ALJ did not note any lack of pain
complaints; such a contention would be unsupportable because of
shoulders, back, and joints. Instead, the ALJ focused on the strong
evaluation of Wallace by the examining physician. That physician’s
report noted a normal range of motion; a lack of joint deformity;
no joint or back impairment; normal gait, reflexes, and sensation;
The ALJ later found that her testimony of hand numbness
impeaches her credibility generally, for the same reasons as
stated above. This finding is also supported by substantial
abilities to squat and rise; and good muscle strength. (R. at 42829). The physician noted pain trigger points in Wallace’s upper
back, neck, and shoulders. (R. at 429). Wallace also testified to
an ability to bend at the waist and touch her toes. (R. at 72).
The ALJ also discounted Wallace’s fibromyalgia and herniated
disc pain complaints because of a lack of aggressive treatment
pursued by Wallace. He noted that Wallace had not sought treatment
from a rheumatologist for her fibromyalgia or from any other
specialist, save for a neck surgery in 2012. The ALJ also found
that several of her medications were prescribed at relatively low
doses, in comparison with usual doses listed in The Pill Book. (R.
at 28). The ALJ did not note Wallace’s treatment by a hand
specialist in 2008. (R. at 446-48). This treatment, however, was
prior to the alleged onset date. While Wallace may have had reasons
for not seeking more specialist help, such as issues with insurance
or ability to pay, and while the medication and dosages listed by
the ALJ may not be fully indicative of Wallace’s overall treatment,
inadequate to support Wallace’s lack of credibility. Substantial
evidence therefore supports the ALJ’s discrediting of Wallace’s
testimony regarding her fibromyalgia and herniated disc pain.
The ALJ then shifted to Wallace’s mental limitations, finding
them to be less severe than alleged because of her limited mental
health treatment and her strong psychological evaluation. He first
noted that she received no inpatient mental treatment and had no
psychiatric hospitalizations. Wallace was twice hospitalized in
2009 and complained of mental issues, but the ALJ discounted both
of these visits. During the first visit, in June 2009, she was
admitted for “an episode of altered mental status.” (R. at 318).
She complained of nausea and dizziness after taking a pill given to
her by a friend. (R. at 319). She was discharged, and later records
indicate an allergy to Adipex-P, the medication she took. (R. at
allergic reaction, not as true psychiatric symptoms (R. at 29), and
that characterization is supported by substantial evidence. In
August 2009, Wallace was again hospitalized, complaining of chest
pain and anxiety. The doctor diagnosed chest pain, muscle spasms,
and anxiety. THC (marijuana) was detected in her system. (R. at
326-27). The ALJ again did not consider this a true psychiatric
hospitalization, and, given that the only evidence of mental issues
in the medical records is that Wallace was anxious, that finding is
supported by substantial evidence.
Wallace’s psychiatric symptoms were treated almost exclusively
by her primary care physician. She testified that she had seen a
psychiatrist once, three weeks prior to the disability hearing, and
that she had a second visit scheduled for the day after the
hearing. (R. at 57). The ALJ noted that no records of the second
visit were submitted, even though the administrative record was
held open for those records. (R. at 29). A psychiatrist did,
however, later submit a note stating that Wallace will need to be
in counseling to help with her psychiatric care. (R. at 453). The
court finds that the lack of regular psychiatric care supports the
evaluation, conducted by an examining physician in connection with
the Disability Determination Service. Apart from her apparent
physical pain, the examining doctor noted very few deficiencies. He
responsive, and well-oriented. Her verbal responses were normal, as
thinking, fund of general information, computational skills, and
description of Wallace and her visit, he assigned her a Global
Assessment of Functioning score of 60, representing “Moderate
Symptoms Affecting Personal, Social, and Occupational Functioning.”
(R. at 431-33). The ALJ properly relied on this report in reaching
and supporting his RFC finding, discounting Wallace’s testimony of
more severe limitations.
The ALJ then discussed several reasons that he found Wallace’s
credibility to be lessened by inconsistencies in the record. (R. at
30). First, Wallace testified at the hearing on July 29, 2013, that
According to Wallace, she gained 100 pounds in the six months prior
medication and depression. (R. at 49). The ALJ found this statement
to lessen her credibility because her driver’s license, issued six
months prior, showed her weight as 185 pounds, not between 140 and
160, and her last physical examination by her family doctor, in
August 2011, also listed her weight as 185 pounds. The ALJ noted
that records show Wallace’s weight to have previously reached 240
pounds in 2009 and 2010. (R. at 30).
The court finds that multiple conclusions could be drawn from
the evidence of Wallace’s weight, but because the ALJ’s conclusion
is one such permissible conclusion, it is supported by substantial
evidence. The records show that Wallace weighed around 210 pounds
from September 2008 until July 2009. (R. at 367-80). She weighed
around 240 pounds from November 2009 until June 2010 (R. at 35763), when her weight began to steadily drop until she weighed 170
pounds in January 2012. (R. at 346, 351, 427). In January 2013, her
driver’s license listed her weight as 185 pounds. (R. at 30). The
evidence does not necessarily discredit her testimony that she
gained 100 pounds in the six months prior to the hearing, since no
administrative record. But the driver’s license from the beginning
of that time period lists her weight as 185 pounds, and the record
plainly establishes that she did not routinely weigh 140 to 160
pounds. The ALJ’s conclusion is therefore supported by substantial
limitations inconsistent with the record. Wallace testified that
15-20 days per month she does not get out of bed, and the other
days she does little more than sit in a recliner while occasionally
watching television or smoking. (R. at 66-67, 74). She testified
that she cannot vacuum the house and is hardly able to clean. (R.
at 65). The ALJ found that testimony inconsistent with Wallace’s
previous statements. Wallace indicated in her Adult Function Report
that she is able to brush her teeth; brush her hair; daily prepare
sandwiches, salads, and microwavable foods; sweep, vacuum, and dust
weekly; drive; grocery shop weekly, for about an hour; and handle
money. (R. at 226-30). While it is possible that her conditions
deteriorated between the time she completed the Adult Function
credibility is supported by substantial evidence.
Finally, the ALJ noted that Wallace testified to side effects
of her medication, namely dry mouth, constipation, fluid build-up,
and moments of unawareness and forgetfulness, but the ALJ found no
persistent complaints of those side effects in the record. (R. at
31). The court notes three complaints of fluid build-up (R. at 358,
362, 364) and four complaints of constipation (R. at 368, 372, 374,
390) in Wallace’s medical records, as well as a note in her Adult
Function Report that she sometimes forgets appointments (R. at
230). The court finds this particular conclusion to be unsupported
by substantial evidence, but this lack of support is harmless given
the properly supported credibility concerns articulated by the ALJ.
Next, the ALJ largely discounted the opinion of Dr. Jotani,
Wallace’s primary care physician, who stated in a submitted letter:
“Angela Wallace has significant psychological problems which keep
her physically and emotionally from doing her job.” (R. at 272).
The ALJ give Dr. Jotani’s opinion little weight because (1) the
opinion relates to the ultimate issue of the case, a determination
reserved solely to the Commissioner; (2) Dr. Jotani is Wallace’s
Wallace’s psychiatrist opined that Wallace would benefit from
counseling, not that she is unable to work. (R. at 31). Wallace
argues that the ALJ’s discounting of the letter was improper.
substantial or considerable weight unless ‘good cause’ is shown to
the contrary.” Lewis v. Callahan, 125 F.3d 1446, 1440 (11th Cir.
1997). Inter alia, good cause may be shown when the doctor’s
finding.” Id. A treating physician’s opinion that a claimant is
unable to work is not a medical opinion, but rather an opinion on
an issue reserved to the Commissioner, and is not owed deference.
20 C.F.R. § 404.1527(d)(1); see also Lanier v. Comm’r of Soc. Sec.,
252 F. App’x 311, 314 (11th Cir. 2007). The court should “not
second guess the ALJ about the weight the treating physician's
opinion deserves so long as he articulates a specific justification
for it.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 823
(11th Cir. 2015). The ALJ’s discounting of Dr. Jotani’s letter was
Commissioner, is conclusory, and is more restrictive than that of
discount Dr. Jotani’s opinion.
Finally, the ALJ accorded significant weight to the Mental RFC
Assessment, which supported his RFC finding, and some consideration
to the letter submitted by Wallace’s former employer, who stated
that Wallace could not perform her duties, particularly dealing
with the public, because of her health, and her continued issues
have precluded re-employment. (R. at 267). The ALJ considered this
opinion but noted that her former work was a skilled, management
position that involved dealing with the public, and the RFC finding
as stated would preclude such work.
Based on the totality of the evidence, the ALJ found that
described above. Even though those limitations were less severe
than those testified to by Wallace, for the reasons stated above,
both the ALJ’s decision to partially discredit Wallace’s testimony
and his RFC finding are supported by substantial evidence.
2. The ALJ’s Other Work Finding is Supported by Substantial
Based on this RFC determination, the ALJ found that jobs exist
in significant numbers in the national economy that Wallace could
perform. (R. at 32). The ALJ relied on testimony from the VE in
making this finding. The VE first testified that a claimant of
Wallace’s age, education, and work experience and the exact RFC
described above would be able to find and perform three different
types of jobs. (R. at 81-83). The VE then testified that a claimant
of Wallace’s age, education, and work experience with many other
restrictions–-the claimant could only stand or walk uninterrupted
for 20 minutes or sit uninterrupted for 30 minutes, would need to
be able to sit or stand at will and to elevate her legs at will,
would need five unscheduled breaks per eight-hour shift, and would
likely have 15 unplanned absences in a 30-day period--could perform
no work and would thus be disabled. (R. at 83-85).
Wallace argues that, based on the second hypothetical, she
must be found disabled because she suffers from all of those
limitations. In making the RFC finding, however, the ALJ found that
hypothetical, not the second, and, as stated above, that RFC
finding is supported by substantial evidence and will not be
evaluated under the VE’s first hypothetical. Wallace does not
challenge the propriety of the VE’s answer to that hypothetical;
she only argues that it is inapplicable to her. Because the first
hypothetical is applicable to Wallace, the ALJ’s determination that
substantial evidence. Wallace, therefore, is not disabled.
Because the ALJ’s determination that Wallace is not disabled
is supported by substantial evidence, and because the ALJ applied
proper legal standards, the Commissioner’s final decision is due to
be affirmed. A separate order will be entered.
DONE this 25th day of January, 2016.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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