Frank v. Astrue
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 12/8/2011. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
The plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her application for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). The parties have consented to the exercise of jurisdiction by
the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.
(See Doc. 24 (“In accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the
parties in this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”).) Upon consideration of the administrative record
(“R.”) (Doc. 12), the plaintiff’s brief (Doc. 14), the Commissioner’s brief (Doc. 15), and
the arguments made by the parties at the November 17, 2011 Hearing, it is determined
that the Commissioner’s decision denying the plaintiff benefits should be reversed and
remanded for further proceedings not inconsistent with this decision.1
On December 28, 2006, the plaintiff filed an application for DIB and SSI, alleging
a disability onset date of December 1, 2006, due to learning disabilities, high blood
pressure, stress, headaches, scoliosis, and a herniated disc. (See R. 132 & 113.) After
her application was denied on April 17, 2007 (see R. 48-59), she requested, on April 20,
2007, a hearing (see R. 60), which was held on May 14, 2009 (see R. 22-45).
Administrative Law Judge issued an unfavorable decision (R. 10-21) on May 29, 2009,
and the plaintiff sought review from the Appeals Council on June 3, 2009 (see R 8-9).
Review was denied by the Appeals Council on March 11, 2011 (see R 1-3)—making the
ALJ’s determination the Commissioner’s final decision for purposes of judicial review,
see 20 C.F.R. § 404.981—and a complaint was filed in this Court on April 29, 2011 (see
Standard of Review
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 24 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
The plaintiff’s application is not included as part of the administrative record
filed in this Court.
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner
must consider the following four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the
plaintiff’s age, education, and work history. Id. Once the plaintiff meets this burden,
it becomes the Commissioner’s burden to prove that the plaintiff is capable—given his
or her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Although at the fourth step “the [plaintiff] bears the burden of
demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence. Substantial evidence is defined
as more than a scintilla, and means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971). “In determining whether substantial evidence exists, [a court] must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.” Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. 2010) (per curiam)
(citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
And, “[e]ven if the
evidence preponderates against the Commissioner’s findings, [a court] must affirm if
the decision reached is supported by substantial evidence.”
Id. (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the plaintiff asserts four separate claims:
The ALJ erred in finding “(Rule Out) mild mental retardation” to be not
The ALJ failed to fully and fairly develop the record regarding plaintiff’s
The ALJ erred in failing to find the plaintiff meets Listing 12.05C; and
The ALJ erred in rejecting the opinion of the treating physician, Dr.
She has also filed a separate motion to remand (Doc. 16) on the basis of new evidence.
Because the Court determines that the decision of the Commissioner should be reversed
and remanded for further proceedings based on its consideration of the plaintiff’s third
claim,3 there is no need for the Court to consider the plaintiff’s other claims or the
The Court is inclined, however, to address the plaintiff’s first two claims on
appeal, which, at least to the undersigned, appear related. As to the plaintiff’s first ground:
without conceding the propriety of the ALJ’s conclusion that the plaintiff’s alleged mental
retardation was not severe due to lack of evidence to support a finding that she suffered from
significant functional limitations, the Commissioner contends that because the ALJ found that
both the plaintiff’s back disorder and depression constituted severe impairments (see R. 15), the
ALJ’s alleged failure to properly consider—and find as severe—the plaintiff’s mild mental
retardation is of no consequence. The Commissioner relies on Brescia v. Astrue, 287 Fed. App’x
626 (10th Cir. 2010), in which the Tenth Circuit noted that it could “‘easily dispose of’ an
argument that the ALJ should have found additional impairments to be severe because ‘[t]he
ALJ . . . made an explicit finding that [the claimant] suffered from severe impairments. That
was all the ALJ was required to do in that regard[,]’” id. at 629 (quoting Oldham v. Astrue, 509
F.3d 1254, 1256 (10th Cir. 2007)). First, “the claimant’s burden at step two is mild and only the
most trivial of impairments may be rejected.” Zellner v. Astrue, No. 308-cv-1205-J-TEM, 2010 WL
1258137, at *4 (M.D. Fla. Mar. 29, 2010) (citing McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.
1986)). And while the “failure to find an impairment severe at step two can be harmless error
if the ALJ considers the functional limitations of the impairment at later steps of the
evaluation[,]” id. (quoting Gatewood v. Comm’r of Soc. Sec., No. 6:09-cv-122-Orl-31 KRS, 2010 WL
455318, at *11 (M.D. Fla. Feb. 3, 2010)), “[t]here is [ ] no bright line rule that all errors at step 2
are harmless when the ALJ moves beyond step 2[,]” Newton v. Astrue, Civil Action No.
1:06-CV-1542-AJB, 2008 WL 915923, at *10-11 (N.D. Ga. Apr. 1, 2008) (noting that the job for a
reviewing court is to, instead, “examine whether the error at step 2 infected another portion of
the evaluation process”). Even though, here, the ALJ appears to consider the mental
impairment later in the evaluation process, it appears that her failure, at step two, to find the
mental impairment severe—or, moreover, further develop the record with respect to the
plaintiff’s mental impairment—may have “infected” the rest of the evaluation process.
For example, in addition to not treating the plaintiff as presumptively disabled under
section 12.05(C) based on her valid IQ (R. 15) and additional “severe impairments: back
disorder and depression” (id.)—which will be discussed more fully below—the ALJ chose to
rely on a report, from Dr. Patterson, in which he found that the plaintiff has a Full Scale IQ of 63
(based on the administration of the WAIS-III) (R. 206) and stated that “Mental Retardation is
offered as a rule out diagnosis secondary to adaptive skills that were not formally assessed” (R.
207), but then saw no need to consider whether additional testing was needed to “rule out” the
alternative diagnosis. Cf. Griffin v. Barnhart, 198 Fed. App’x 561, 564 (7th Cir. 2006) (in which
the Seventh Circuit rejected an appellant’s argument that the “ALJ improperly discounted
evidence supporting his mental retardation claim,” including “his placement in special
education classes during childhood, his poor academic record, his illiteracy, and [a doctor’s]
post-examination note to ‘rule out mild mental retardation’ to show that he is mentally
retarded,” noting that the appellant, unlike the plaintiff in this case, “did not supply the ALJ
with sufficient evidence supporting his claim[; f]or example, he did not provide IQ, or any
other test results, which are required by statute to establish mental retardation”) (emphasis
added); id. (also rejecting the appellant’s related argument that “that the ALJ abdicated his duty
to fairly develop the record by not requesting a full psychological examination”—“The ALJ’s
duty to develop the record is not so sweeping that it can relieve an applicant entirely of his own
responsibility for supporting his claim; instead, the ALJ must exercise some discretion in
deciding when and how he should order additional evidence. Dr. O'Brien’s note is the only
evidence suggesting mental retardation, but the notation to ‘rule out mild mental retardation’
was by no means a diagnosis. Given the dearth of evidence supporting Griffin’s claim, the ALJ
did not abuse his discretion in refusing to order additional tests. Substantial evidence in the
record supported his conclusion that Griffin did not meet the listing for mental retardation.”)
(emphasis added); see also Edwards v. Astrue, 525 F. Supp. 2d 710, 713 & n.3 (E.D. Pa. 2007)
separate motion to remand (Doc. 16), which, as such, is deemed MOOT. See Robinson
v. Massanari, 176 F. Supp. 2d 1278, 1280 & n.2 (S.D. Ala. 2001); cf. Pendley v. Heckler, 767
F.2d 1561, 1563 (11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone
warrants reversal,’ we do not consider the appellant’s other claims.”).
Under the law of this Circuit, a claimant bears the burden of proving that he or
she has an impairment that meets or is medically equivalent to a listed impairment.
Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986) (“We hold that when a claimant
contends that he has an impairment meeting the listed impairments entitling him to an
adjudication of disability under regulation 404.1520(d), he must present specific medical
findings that meet the various tests listed under the description of the applicable
impairment or, if in the alternative he contends that he has an impairment which is
equal to one of the listed impairments, the claimant must present medical evidence
which describes how the impairment has such an equivalency.”); see also Wilson v.
Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (“To ‘meet’ a Listing, a claimant must have
a diagnosis included in the Listings and must provide medical reports documenting
that the conditions meet the specific criteria of the Listings and the duration
requirement. . . . To ‘equal’ a Listing, the medical findings must be ‘at least equal in
severity and duration to the listed findings.’”).
To establish presumptive disability under section 12.05(C), a claimant must
present evidence of “[a] valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing additional and significant work-related
limitation of function.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C). In
addition, while the plaintiff must “also satisfy the ‘diagnostic description’ of mental
retardation in Listing 12.05[,]”4 Cooper v. Commissioner of Soc. Sec., 217 Fed. App’x 450,
452 (6th Cir. 2007) (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001)), the law in
this Circuit is clear that where, as here, a claimant has presented a valid IQ score of 60 to
70, she is entitled to the presumption that she manifested deficits in adaptive
functioning before the age of 22, see Hodges v. Barnhart, 276 F.3d 1265, 1266 & 1268-1269
(11th Cir. 2001).
This presumption is, however, rebuttable. But the Commissioner is charged
with the task of determining whether there is sufficient evidence (relating to plaintiff’s
daily life) to rebut the presumption. See Grant v. Astrue, 255 Fed. App’x 374, 375 (11th
Cir. 2007) (per curiam). For example, in Lowery v. Sullivan, 979 F.2d 835 (11th Cir.
1992)—relied on by the Commissioner—the Eleventh Circuit recognized that a valid IQ
score is not necessarily conclusive of mental retardation where the score is inconsistent
with other evidence of claimant’s daily activities, see id. at 837. Specifically, in the
context of 12.05(C), the Eleventh Circuit held:
“Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.” 20
C.F.R. Part 404, Subpart P, Appendix 1 § 12.05. “‘Adaptive functioning’ refers to a person’s
ability to perform activities of daily living and social functioning.” Fischer v. Barnhart, 129 Fed.
App’x 297, 301-02 (7th Cir. 2005) (citation omitted).
To establish a disability under section 12.05(C), a claimant must present
evidence of a valid verbal, performance, or full-scale I.Q. score of between
60 and 70 inclusive, and of a physical or other mental impairment
imposing additional and significant work-related limitation of function.
See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C) (1992). . . .
Generally, a claimant meets the criteria for presumptive disability under
section 12.05(C) when the claimant presents a valid I.Q. score of 60 to 70
inclusive, and evidence of an additional mental or physical impairment
that has more than “minimal effect” on the claimant’s ability to perform
basic work activities. See Edwards by Edwards v. Heckler, 755 F.2d 1513,
1517 (11th Cir. 1985). This court, however, has recognized that a valid
I.Q. score need not be conclusive of mental retardation where the I.Q.
score is inconsistent with other evidence in the record on the claimant’s
daily activities and behavior. Popp v. Heckler, 779 F.2d 1497, 1499 (11th
Cir. 1986) (rejecting a claim of section 12.05(C) mental retardation where
the claimant’s I.Q. score of 69 was inconsistent with evidence that he had
a two-year college associate’s degree, was enrolled in a third year of
college as a history major, and had worked in various technical jobs
such as an administrative clerk, statistical clerk, and an algebra teacher).
Id. at 837 (emphasis added); see also Grant, 255 Fed. App’x at 374 (“The mental
retardation Impairment Listing in § 12.05C requires the claimant to demonstrate a
‘significant subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the development period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22,’ as well as a ‘valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of
function.’”) (quoting §§ 12.00A, 12.05, 12.05(C)) (emphasis added).
Although, here, the ALJ references 20 C.F.R. Part 404, Subpart P, Appendix 1, she
considers only section 12.04. (See R. 16.) The ALJ fails to cite to, discuss, or otherwise
reference section 12.05(C). (See R. 13-21.) Given the ALJ’s third finding that “[t]he
claimant has the following severe impairments: back disorder and depression” (R. 15)
and her acceptance of the IQ testing (see id. (“In this case, I note that the claimant was
administered the [WAIS-III] test on April 4, 2007, and the test results were considered
by the examining sources to be a reliable estimate of true abilities. Overall her full
scale IQ was measured to be 63.”) (emphasis added)), it is clearly error to not consider
Listing 12.05(C) and, given the evidence before the ALJ, first find that a claimant is
presumptively disabled. Under the correct framework—which the ALJ should apply
on remand—the plaintiff is entitled to this presumption and the burden falls on the
Commissioner to rebut it.
Further, as indicated above, section 12.05(C) claims of mental retardation may be
rejected where a claimant’s score is inconsistent with other evidence in the record. See
Lowey, 979 F.2d at 837 (citing Popp, 779 F.2d at 1499 (noting that in addition to the IQ
score, it is also appropriate to consider other evidence in the record, such as medical
reports, daily activities, and behavior)). And it appears that the ALJ may have skipped
to this step without first discussing section 12.05(C) and its applicable presumption.
In any event, while “Popp is perhaps the strongest case for finding that an IQ
score below 70 does not necessarily meet Listing 12.05C[, t]here are several other
[decisions from courts in this Circuit] with facts somewhat like Popp.”
Astrue, No. 1:10cv14-MP/WCS, 2010 WL 4942740, at *14 (N.D. Fla. Oct. 22, 2010), report
& recommendation adopted by 2010 WL 4942733 (N.D. Fla. Nov 23, 2010)—
See Bischoff v. Astrue, No. 07-60969-CIV, 2008 WL 4541118, at *20 (S.D. Fla.
Oct 9, 2008) (affirming that Listing 12.05(C) not met where the claimant’s
IQ scores were lower than 70, but he had previously been employed as a
parts manager and automobile mechanic—jobs that required technical
knowledge and skills—supervising other employees and there was
evidence that he was “faking” his IQ scores and offered inconsistent
reports as to his level of education completed);
Davis v. Astrue, Civil Action No. 2:07cv880-TFM, 2008 WL 2939523, at *3
(M.D. Ala. Jul 25, 2008) (affirming that Listing 12.05(C) not met where the
claimant had an IQ score lower than 70, but had also completed twelfth
grade, received training in cosmetology and secretarial skills, had a
driver’s license, was able to read, write, and perform simple math, and a
consulting psychologist had determined that she was in the borderline
level of intellectual functioning rather than mildly retarded);
Brown v. Astrue, No. CV608-036, 2009 WL 2135005, at *5 & n.5 (S.D. Ga. Jul
15, 2009) (affirming that Listing 12.05(C) not met where the claimant had
performance and full scale IQ scores below 70, but admitted in his work
questionnaires “that while working as a carpenter he was a lead worker
who supervised, hired, and fired employees, and regularly used machines
and technical knowledge and skills, including taking measurements and
making calculations” and also, “as a famer[,] supervised other workers”);
Lyons v. Astrue, No. 2:08-cv-614-FtM-29SPC, 2009 WL 1657388, at *10-11
(M.D. Fla. Jun 10, 2009) (affirming that Listing 12.05(C) not met where the
claimant had, inter alia, a full scale IQ score of 65, but had also obtained a
high school diploma, did not take special education classes, could take
care of his personal needs, earned from $13,000 to $18,000 per year for 7
years, and there was evidence that he was malingering when he took the
But see Durham v. Apfel, 34 F. Supp. 2d 1373, 1380 (N.D. Ga. 1998), report
and recommendation subsequently adopted by District Judge (reversing and
remanding ALJ’s determination that Listing 12.05(C) not met; concluding
that the work history—primarily as a heavy laborer—of a claimant with a
full scale IQ of 68 was not beyond the reach of a mildly retarded
individual; and distinguishing Popp, stating: “Unlike Mr. Popp, Mr.
Durham’s work experience does not include technical jobs, but jobs as a
laborer. He did not teach high school algebra, he worked as a tire
repairer, laborer, kitchen helper and material handler. Mr. Durham did
not go to college, he went to the fourth grade.”) (record citation omitted);
Loveday, 2010 WL 4942740, at *16 (finding the conclusion that IQ test scores
“consistently below 70” were either “invalid or not adequately descriptive
of Plaintiff’s intellectual capabilities is not supported by substantial
evidence” where the plaintiff worked as a laborer, tile setter, and doing
lawn work, did not complete school, and was enrolled in special
education classes; concluding: “There was not substantial evidence in this
record to fail to give substantial weight to the IQ scores or to find those
scores to be invalid.”);
Alday v. Astrue, No. 5:08cv217-SPM/WCS, 2009 WL 347722, at *3-7 (N.D.
Fla. Feb. 11, 2009) (order adopting report and recommendation of
Magistrate Judge) (in which the court reversed an ALJ’s determination
that a claimant with a verbal IQ of 66, a performance IQ of 73, and a full
scale IQ of 66 did not meet Listing 12.05(C)—in which the ALJ found that
the claimant was not mildly mentally retarded based, in part, on her daily
activities of “having a boyfriend,” sweeping and doing some laundry,
taking care of a dog, and walking grandchildren to school—and ordered
that the Commissioner grant the claimant’s application for benefits);
Black v. Astrue, 678 F. Supp. 2d 1250, 1261 (N.D. Fla. 2010) (in which the
court rejected an ALJ’s determination that a claimant’s adaptive
functioning was inconsistent with Listing 12.05(C) where the evidence
showed that the claimant worked as a mushroom picker, could drive a
motor vehicle for short distances, cook, took care of her personal needs,
and handled cash without a bank account, but needed help from her
family for other activities);
Monroe v. Astrue, 726 F. Supp. 2d 1349, 1357-58 (N.D. Fla. 2010) (order
adopting report and recommendation of the Magistrate Judge) (“The
evidence from these forms shows that Plaintiff can function with reading
and writing at a simple level, but this is consistent with her ability to work
in a fast food job. Following the reasoning of the cases discussed above
[the same cases set forth in this order], this is not substantial evidence to
discount a valid I.Q. score. Since the I.Q. score is valid and the other
criteria of Listing 12.05C were met, Plaintiff's applications for benefits
should have been approved at step 3.”) (emphasis added);
Cobb v. Barnhart, 296 F. Supp. 2d 1295, 1297-98 (N.D. Ala. 2003) (similar).
Thus, following the reasoning of the cases above, it does not appear that the
other evidence in this record—specifically, the plaintiff’s daily activities and
behavior—is inconsistent with her IQ testing. That is, had the ALJ correctly applied
the Listing 12.05(C) presumption, citing the plaintiff’s ability to raise children, act as a
primary caregiver, and hold steady employment in the past (which consisted of being
an office cleaner and fast food worker)—particularly given her history of taking special
education classes and failure to complete high school—as evidence that the IQ testing is
“not adequately descriptive of Plaintiff’s intellectual capabilities [would] not [have
been] supported by substantial evidence.” Loveday, 2010 WL 4942740, at *16.
A claimant’s level of educational
attainment and whether he or she
was enrolled in special education
Compare Popp, 779 F.2d at 1499; Bischoff,
2008 WL 4541118, at *20; Davis, 2008 WL
2939523, at *3; Lyons, 2009 WL 1657388, at
*10-11, with Durham, 34 F. Supp. 2d at
1380; Loveday, 2010 WL 4942740, at *16.
The nature of—i.e., the level of skill
necessary to undertake—the work
performed by a claimant matters.
Compare Popp, 779 F.2d at 1499; Bischoff,
2008 WL 4541118, at *20; Davis, 2008 WL
2939523, at *3; Brown, 2009 WL 2135005, at
*5 n.5, with Durham, 34 F. Supp. 2d at 1380;
Loveday, 2010 WL 4942740, at *16; Black,
678 F. Supp. 2d at 1261; Monroe, 726 F.
Supp. 2d at 1357-58.
A claimant’s ability to perform
tasks required for, or indicative of,
independent living is not
inconsistent with IQ scores lower
See Alday, 2009 WL 347722, at *3-7; Black,
678 F. Supp. 2d at 1261.
Whether there is evidence that a
claimant was malingering or
“faking” during her IQ testing
matters. (None is present here.)
See Bischoff, 2008 WL 4541118, at *20; Lyons,
2009 WL 1657388, at *10-11.
Whether there is a determination
that a claimant was in the
borderline level of intellectual
See Davis, 2008 WL 2939523, at *3.
functioning rather than mildly
retarded matters. (There was no
This only underscores the need of the ALJ, on remand, to further develop the
record in this case or, following the correct framework pursuant to section 12.05(C),
grant the plaintiff’s application for benefits.
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Plaintiff benefits be reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further
proceedings not inconsistent with this decision. The remand pursuant to sentence four
of § 405(g) makes Plaintiff a prevailing party for purposes of the Equal Access to Justice
Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this
Court’s jurisdiction over this matter.
DONE this the 8th day of December, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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