Cox v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/23/2015. (KEK)
2015 Sep-23 PM 03:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
Case Number: 6:14-cv-01199-JHE
MEMORANDUM OPINION 1
Plaintiff Michelle Cox (“Cox”) seeks review, pursuant 42 U.S.C. § 405(g), § 205(g) of
the Social Security Act, of a final decision of the Commissioner of Social Security
Administration (“Commissioner”), denying her application for a period of disability and
Disability Insurance Benefits (“DIB”). Cox timely pursued and exhausted her administrative
remedies. This case is therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). The
undersigned has carefully considered the record, and, for the reasons stated below, the
Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
Cox was forty-three years old as of that date last insured, and she has a high school
education. (Tr. 14, 134, & 157). Her past relevant work includes employment as an accounts
payable clerk, a retail associate, a bingo worker, and a vault clerk. (Tr. 18). Cox claims she
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 14).
became disabled on April 1, 2011, due to mental depression, migraine headaches, and anxiety.
(Tr. 153 & 433).
Cox filed her applications for a period of disability and DIB on February 23, 2011. (Tr.
The Commissioner initially denied Cox’s application on October 4, 2011, and Cox
requested a hearing before an Administrative Law Judge (“ALJ”). (Id.). After a hearing, the
ALJ denied Cox’s claim on February 1, 2013. (Tr. 12-20). Cox sought review by the Appeals
Council, but it declined her request on April 24, 2014. (Tr. 1-5). On that date, the ALJ’s
decision became the final decision of the Commissioner. On June 23, 2014, Cox initiated this
action. (See doc. 1).
II. Standard of Review 2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This 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.”
It is “more than a scintilla, but less than a
This Court must uphold factual findings supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches to the
In general, the legal standards applied are the same whether a claimant seeks DIB or
Supplemental Security Income (“SSI”). However, separate, parallel statutes and regulations
exist for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to
the appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528,
531 (11th Cir. 1993). If 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 the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder. 3
The Regulations define “disabled” as “the inability to do 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 twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has
satisfied steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.”
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show such work exists in the national economy in significant
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Cox met the insured status requirements of the Social
Security Act through December 31, 2011, and that Cox had not engaged in substantial gainful
activity from the alleged onset date of April 1, 2011. (Tr. 14). At Step Two, the ALJ found Cox
has the following severe impairments: migraine headaches, depression, and anxiety. (Id.). At
Step Three, the ALJ found Cox does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 14-15).
Before proceeding to Step Four, the ALJ determined Cox’s residual functioning capacity
(“RFC”), which is the most a claimant can do despite his impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined Cox has the RFC to perform the full range of all exertional
levels. The only limitations were nonexertional: she is limited to unskilled work and should not
be exposed to anything more than occasional interaction with coworkers, supervisors, and
members of the general public. (Tr. 15-18).
At Step Four, after obtaining testimony from a Vocational Expert, the ALJ determined
Cox was unable to perform her past relevant work. (Tr. 18). At Step Five, the ALJ found that,
through the date last insured, considering Cox’s age, education, work experience, and residual
functional capacity, there were jobs existing in significant numbers in the national economy Cox
could have performed; therefore, she was not disabled at any time between the alleged onset date
and the date last insured. (Tr. 20).
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)).
The court, however, “abstains from reweighing the evidence or substituting its own judgment for
that of the [Commissioner].” Id. (citation omitted).
Cox challenges the ALJ’s decision on two grounds: (1) the ALJ failed to properly
evaluate Cox’s credibility under the Eleventh Circuit Pain Standard, (doc. 12 at 3-10), and (2) the
ALJ failed to properly articulate good cause for according less weight to the opinion of a treating
physician, (id. at 10-13). However, substantial evidence supports the ALJ’s determination Cox
failed to demonstrate a disability, and the ALJ applied the proper standards to reach this
Eleventh Circuit Pain Standard
The Eleventh Circuit “has established a three part ‘pain standard’ that applies when a
claimant attempts to establish disability through his or her own testimony of pain or other
subjective symptoms. 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 pain.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991).
Subjective testimony supported by medical evidence
satisfying the standard is sufficient to support a finding of disability. Id. “If the ALJ decides not
to credit such testimony, he must articulate explicit and adequate reasons for doing so.” Id.
The ALJ found Cox’s medically determinable impairments could reasonably be expected
to cause the alleged symptoms, satisfying the pain standard and establishing her testimony as
sufficient to support a finding of disability.
(Tr. 16). However, the ALJ may still make a
credibility determination on the claimant’s statements about the intensity and effect of that pain.
See Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Hogard v. Sullivan, 733 F.Supp.
1465, 1469 (M.D. Fla. 1990). The ALJ’s adverse credibility determination must be supported by
“explicit and adequate reasons,” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991), and
substantial evidence, see Foote, 67 F.3d at 1561-62.
In support of his decision not to fully credit Cox’s subjective pain testimony, the ALJ
stated Cox’s treatment for her migraines during the period between the alleged onset and the date
last insured was infrequent and conservative, limited to continuing her medication and
recommending a follow-up appointment Cox did not make. (Tr. 16-17) (citing tr. 303-08). The
ALJ further noted the medical evidence was consistent with the reports of the physical and
psychological consultative examinations, which found, physically, she was good with normal
neurological findings and, psychologically, she had normal speech, adequate concentration and
attention, an intact memory, consistent fund of information, adequate abstraction, and logical and
coherent thought processes, albeit with a gloomy mood, blunted affect, and poor judgment and
insight. (Tr. 17) (citing tr. 257-71). The ALJ also considered Cox’s extensive daily activities,
finding they were inconsistent with her allegations of disabling pain, dysfunction, and mental
limitations, (id.), and her inconsistent past work history, which he noted raised a question
whether Cox’s current unemployment is actually the result of her medical condition, (tr. 18). He
gave Dr. Farouk Raquib’s opinion little weight because it primarily addressed Cox’s limitations
after the date last insured, was based on limited treatment and Cox’s subjective complaints
instead of objective evidence. (Tr. 18).
Cox first contends the ALJ picked and chose among the medical records to support his
own conclusion, relying on part of one treatment note from November 1, 2011, and “ignored the
importance of the Plaintiff’s report that she was having weekly migraines lasting 3-4 days.”
(Doc. 12 at 5) (citing tr. 307). This argument, however, is circular, relying on Cox’s own
subjective reports to establish the credibility of her subjective allegations. The fact a doctor
noted Cox’s own subjective reports of headaches does not convert those subjective reports into
objective evidence supporting the subjective report. Focusing on the objective evidence for or
against the claimant’s subjective report is precisely the point of the credibility analysis and does
not constitute cherry-picking.
The ALJ noted Dr. Long only prescribed medication, no
emergency or invasive treatment was necessary during the relevant time period, and Cox did not
return for the recommended follow-up. (Tr. 16-17). (See also tr. 307, 317-20, & 323-24).
On a similar note, Cox asserts that, contrary to the ALJ’s finding, the evidence of Dr.
Raquib’s treatment after the last date insured “is probative of the Plaintiff’s condition as it
documents her continued treatment for her severe debilitating migraine headaches.” (Doc. 12 at
6). She notes she began seeing Dr. Raquib regularly starting in January 2012, complaining of
daily headaches, and, in June, July, and August 2012, received injections for them. (Id. at 6).
Cox does not explain how an increase in treatment after 2012 is indicative of debilitating
migraines before December 31, 2011. In fact, an increase in the conservative treatment being
received before January 30, 2012, is more indicative of an increase in the severity of the
condition after the date last insured than it is of long-term debilitating migraines that were, for
the entire time Cox met the insured status requirements, simply receiving more limited treatment.
(Tr. 364-67). It is at least equally indicative of the two inferences, which hardly supports Cox’s
contention the ALJ’s determination is not supported by substantial evidence.
Next, Cox cites Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), for the
proposition participation in everyday activities does not disqualify a claimant from disability.
(Doc. 12 at 7) (also quoting Smith v. Califano, 637 F.2d 968, 971-72 (3rd Cir. 1981), for a
While this may be true, the ALJ was not determining disability but
considering the evidence of Cox’s daily activities to the extent it contradicted her subjective
testimony on the severity of her pain and thereby undermined her credibility. In Lewis, the ALJ
had rejected the recommendations of treating physicians, in part, because of evidence of daily
activities, and the court held that daily activities were not dispositive of disability and found, on
the facts of that case, the evidence of daily activities was not “inconsistent with the limitations
recommended by [the plaintiff]’s treating physicians.” 125 F.3d at 1441. Nothing in Lewis
prevents an ALJ from relying on daily activities to the extent they are inconsistent with other
evidence. See also Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (“The regulations do
not . . . prevent the ALJ from considering daily activities at the fourth step of the sequential
Cox also asserts the ALJ’s description of her daily activities was misleading because the
evidence shows her more limited than the ALJ’s opinion implies. (Doc. 12 at 7-8). The ALJ’s
opinion, however, merely lays out the various activities Cox, her ex-husband, and her physicians
have said she can do and states these are inconsistent with Cox’s allegations of disabling pain,
dysfunction, and mental limitations. (Tr. 17). Although there are statements in the underlying
evidence indicating limitations on those activities, there is sufficient evidence to adequately
support the ALJ’s conclusion that Cox’s admitted wide-ranging activities are inconsistent with
the level of disabling pain she alleges.
Along similar lines, Cox argues the ALJ’s reference to her sporadic work history as
raising questions about whether her current unemployment is actually the result of her medical
condition is an unsubstantiated, “irrational assumption.” (Doc. 12 at 8-9). Cox cites to no
authority for the proposition the ALJ may not make the inference her sporadic work history
(during times she does not allege she was disabled) indicates other, non-disability reasons for her
failure to work. (See doc. 12 at 8-9). To the contrary, “the ALJ is entitled to consider a
claimant’s work history and a sporadic history may reflect unfavorably on a claimant.” Bryant v.
Comm’r of Soc. Sec., No. 6:14-CV-534-ORL-37, 2015 WL 2169149, at *8 (M.D. Fla. May 8,
2015). Accord Warbington v. Colvin, No. CIV.A. 13-00119-N, 2013 WL 6627015, at *5 (S.D.
Ala. Dec. 17, 2013) (listing “sporadic work history prior to the alleged disability onset date,
which raises a question as to whether her continued unemployment is actually due to medical
impairments” as part of clearly articulated and adequate reasons for discrediting the plaintiff’s
allegations of disabling symptoms (internal quotation marks omitted)).
Cf. Huddleston v.
Comm’r of Soc. Sec., No. 6:12-CV-1273-ORL-DAB, 2013 WL 3581539, at *12 (M.D. Fla. July
11, 2013) (instructing the ALJ on remand not to consider work history evidence in the light of
physician testimony the treatment the plaintiff had been prescribed during that time was possibly
Instead, Cox’s support for her argument is to point to evidence of migraines going back
to 1999 and to assert “[t]he ALJ failed to consider the high probability the Plaintiff was unable to
perform work on a sustained basis due to her health conditions which are documented at that
time.” (Id. at 9). However, this argument is essentially that Cox was disabled during the various
times she was not working despite alleging her medical conditions rendered her unable to work
in April of 2011. (Tr. 134 & 153). She cites to no evidence that the treatment during that time
was not sufficient and that she was, in fact, disabled. On the contrary, in August of 1999,
treatment records show medication helped her headaches, which had not worsened despite a
tragedy in her family. (Tr. 226). A subsequent, extreme headache resolved under medication
with no “symptoms suggestive of complicated migraine headaches.” (Tr. 224-25). Similarly,
the treatment by Dr. Raquib at the Winfield Clinic in 2008 shows she was being treated primarily
for anxiety and that the medication for her anxiety was “helping somewhat” and her migraines
Moreover, despite this relatively successful treatment, that
treatment record states she had been unemployed since March 2007 when the company she had
been working for had gone under.
The ALJ’s conclusion Cox’s work history
undermined her credibility was not unsupported by the evidence.
In sum, the ALJ’s decision not to credit Cox’s subjective testimony is supported by
Consideration of Impairments’ Combined Effects
Cox also contends the ALJ did not properly consider the combined effects of her multiple
impairments. (Doc. 12 at 9-10). It is true that, “an ALJ must make specific and well-articulated
findings as to the effect of the combination of impairments when determining whether an
individual is disabled.” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (citing Bowen v.
Heckler, 748 F.2d 629, 635 (11th Cir. 1984)). However, Cox’s support for her assertion the ALJ
did not consider the combined effects of her impairments is simply to set out the evidence in
support of those other impairments, much of which is after the last date insured. (Doc. 12 at 910). The evidence from after the date last insured could just as easily show deterioration in her
condition over the month and a half between the date last insured and the beginning of her
subsequent treatment. (Tr. 329). Not considering it does not show a failure to consider the
impairments in combination.
The only evidence Cox cites from the relevant time period is Dr. Davis’s consultative
evaluation, specifically the diagnoses of depression and anxiety and the opinion Cox was limited
in ability to respond appropriately to co-workers and supervisors. (Doc. 12 at 9). First, “a
diagnosis or a mere showing of ‘a deviation from purely medical standards of bodily perfection
or normality’ is insufficient; instead, the claimant must show the effect of the impairment on her
ability to work.” Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (quoting McCruter
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)). Second, the ALJ explicitly took into account
the portion of Dr. Davis’s examination report Cox cites, giving “great weight to the opinion of
Dr. Davis, the consultative psychologist, who opined that [Cox]’s ability to respond
appropriately to coworkers and supervisors was quite limited and that [her] ability to carry out
instructions may be impaired as well.” (Tr. 18).
The ALJ made specific and well-articulated findings of what effect the impairments
would have in combination, finding no exertional limitations because all of Cox’s impairments
were mental or psychological and basing the nonexertional limitations on the overall vocational
factor assessments of the state agency and Dr. Davis. (Id.).
Treating Physician’s Opinion
A treating physician’s opinion is entitled to “substantial or considerable weight unless
‘good cause’ is shown to the contrary.” Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997))
(internal quotations omitted). The weight to be afforded a medical opinion regarding the nature
and severity of a claimant’s impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the evidence the medical source
presents to support the opinion, how consistent the opinion is with the record as a whole, and the
specialty of the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Furthermore, “good
cause” exists for an ALJ to give a treating physician’s opinion something less than substantial
weight when the: “(1) treating physician’s opinion was not bolstered by 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, 1241
(11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v. Sullivan, 937 F.2d 580,
583-84 (11th Cir. 1991) (holding that “good cause” existed where the opinion was contradicted
by other notations in the physician’s own record).
Additionally, opinions such as whether a claimant is disabled, the claimant’s residual
functional capacity, and the application of vocational factors “are not medical opinions, . . . but
are, instead, opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is interested in the doctors’
evaluations of the claimant’s “condition and the medical consequences thereof, not their opinions
of the legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440. Such statements
by a physician are relevant to the ALJ’s findings, but they are not determinative, as it is the ALJ
who bears the responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
Here, the ALJ had good cause to discount Dr. Raquib’s opinion. First, the ALJ noted Dr.
Raquib’s assessment, made after the date last insured, described Cox’s limitations “during a
period that [was] not relevant to [the ALJ’s] decision.” (Tr. 18). The ALJ also pointed out Dr.
Raquib’s opinion was based on a limited amount of evaluation time and primarily based on the
claimant’s subjective complaint as opposed to objective findings. (Id.). Further, the opinion’s
ultimate conclusion that Dr. Raquib does not believe Cox will be able to hold any meaningful
employment and supports her fully for permanent disability, (tr. 379), are not “medical opinions”
and are not due any special consideration. See 20 C.F.R. § 404.1527(d).
Cox raises two issues with the ALJ’s conclusion. First, although Cox acknowledges the
ALJ’s statement Dr. Raquib’s opinion describes her limitations during a period after the date last
insured, she merely argues the 2012 treatment (with a quick reference to a brief treatment in
2008) supports Dr. Raquib’s opinion she is unable to maintain meaningful employment. (Doc.
12 at 11-12). Although Dr. Raquib treated Cox in 2008, that treatment was primarily for anxiety,
and the records show the medication for her anxiety was “helping somewhat” and her migraines
were “stable.” (Tr. 236-37). Then, there is no record of treatment with Dr. Raquib until 2012,
after the date last insured. Cox has pointed to roughly six monthly evaluations between January
27, 2012, and June 19, 2012, (tr. 343-67), and a total of seven evaluations over four-and-a-half
years, (tr. 237), that Dr. Raquib had treated her by the time of his opinion. (Doc. 12 at 14). The
fact Dr. Raquib treated her briefly in 2008 and then on a regular basis starting in 2012 does not
extend the time he was a treating physician back through 2008, and the ALJ did not improperly
discount his opinion as based on limited evaluation and, more importantly, occurring mostly
after the relevant time period.
Despite Cox’s contrary assertion the ALJ’s finding is not
supported by the evidence, the record supports a conclusion the long-diagnosed migraines did
not become disabling until after the date last insured and Dr. Raquib’s opinion, written on July
19, 2012, and describing her then current condition and prognosis, does not contradict that
Similarly, Cox contends that, because the medical evidence supports Dr. Raquib’s
opinion, the ALJ was “playing doctor” when he said the alleged intensity and duration of the
migraine headaches could not be objectively demonstrated. (Doc. 12 at 12). She then proceeds
to cite only evidence from 2012. (Id.) (citing tr. 343-67, 399, & 400). Whether Cox was
disabled in 2012, however, is mostly irrelevant to the determination whether she was disabled
between April 1, 2011, and December 31, 2011. At best, the cited evidence is consistent with the
possibility her conditions were disabling in 2011 and she merely waited until late January 2012
to seek regular treatment, but it also strongly supports the conclusion her condition worsened and
did not become disabling until 2012. It was not irrational for the ALJ, as fact-finder, to disregard
that evidence in the context of the wider record when considering whether she was disabled
between April 1, 2011, and December 31, 2011. The ALJ’s decision to give little weight to Dr.
Raquib’s July 2012 opinion is supported by substantial evidence.
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, the decision of the Commissioner of Social Security
denying Cox’s claim for a period of disability and disability insurance benefits is AFFIRMED
and this action DISMISSED WITH PREJUDICE.
DONE this 23rd day of September 2015.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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