GALLANT v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 7/10/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
REPORT AND RECOMMENDED DECISION2
This Social Security Disability (“SSD”) appeal raises the question of whether the
administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work
existing in significant numbers in the national economy. The plaintiff seeks remand on the bases
that (i) the ALJ erred in his assessment of the medical evidence before him, (ii) substantial
evidence does not support his residual functional capacity (“RFC”) assessment, and (iii) substantial
evidence does not support his Step 5 finding.
See Plaintiff’s Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 13) at 2-9.3 I find no error and, accordingly, recommend that
the court affirm the commissioner’s decision.
Nancy A. Berryhill, who is now the Acting Commissioner of Social Security, is substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted her administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which she
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me on March
17, 2017, pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective
positions with citations to relevant statutes, regulations, case authority, and page references to the administrative
The plaintiff also filed a Motion for Leave To File Reply (ECF No. 20), to which she appended a proposed Plaintiff’s
Reply Memorandum to Defendant’s Opposition to Plaintiff’s Itemized Statement of Errors (ECF No. 20-1). I denied
the motion, noting that the plaintiff’s counsel could address the issues raised in the proposed reply brief at oral
argument. See ECF No. 22 (citing Loc. R. 16.3(a)(2)(B)).
The decision at issue is the second pertaining to the plaintiff’s SSD application filed on
January 25, 2011. See Record at 113. Following an unfavorable decision by the ALJ on March
22, 2013, see id. at 128-29, the plaintiff sought review by the Appeals Council, which vacated that
decision and remanded the case to the ALJ for further evaluation of the nontreating source opinion
of Jonathan M. Freedman, Ph.D. See id. at 135. The ALJ held a second hearing on February 26,
2015, during which he took testimony from the plaintiff, a vocational expert, and a psychological
medical expert, James M. Claiborn, Ph.D. See id. at 12, 26-27. On April 18, 2015, he issued the
decision here at issue. See id. at 12-20.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520;
Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found,
in relevant part, that the plaintiff last met the insured status requirements of the Social Security
Act on December 31, 2014, Finding 1, Record at 14; that she had severe impairments of depression,
not otherwise specified (“NOS”), and agoraphobia with panic, Finding 3, id; that she had the RFC
to perform a full range of work at all exertional levels, but with the nonexertional limitations that
she could understand and remember simple instructions, accomplish simple tasks on a consistent
schedule to complete a normal workday and workweek, interact appropriately with small groups
of coworkers, and tolerate occasional interaction with supervisors, but needed to avoid interaction
with the general public, could only occasionally perform collaborative tasks, as she was better
suited for independent work, and could adapt to occasional routine changes in the workplace,
Finding 5, id. at 16; that, considering her age (52 years old, defined as an individual closely
approaching advanced age, on her date last insured, December 31, 2014), education (at least high
school), work experience (transferability of skills immaterial), and RFC, there were jobs existing
in significant numbers in the national economy that she could perform, Findings 7-10, id. at 19;
and that she, therefore, had not been disabled from December 8, 2010, her alleged onset date of
disability, through December 31, 2014, her date last insured, Finding 11, id. at 20. The Appeals
Council declined to review the decision, id. at 1-3, making the decision the final determination of
the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d
622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of
Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which
stage the burden of proof shifts to the commissioner to show that a claimant can perform work
other than her past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support
of the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado
v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
A. The ALJ’s Assessment of Expert Opinions
The plaintiff first argues that the ALJ failed to properly evaluate the opinions of three
sources: treating Nurse Practitioner (“NP”) Annette M. Hatch-Clein, Dr. Claiborn, and Jonathan
Siegel, Ph.D., the plaintiff’s consultative examiner. See Statement of Errors at 2-5. For the reasons
detailed below, these arguments do not succeed.
1. NP Hatch-Clein
The record before the ALJ contained the treatment notes of NP Hatch-Clein as well as a
Medical Source Statement of Ability To Do Work-Related Activities (Mental) form that she
completed on August 6, 2012 (“Hatch-Clein Opinion”). See Record at 500-01. The plaintiff
complains that the ALJ “completely ignored” the Hatch-Clein Opinion. See Statement of Errors
at 3. The commissioner admits that the ALJ did not discuss the opinion but asserts that his handling
of it comported with the requirements of Social Security Ruling 06-03p (“SSR 06-03p”). See
Defendant’s Opposition to Plaintiff’s Itemized Statement of Errors (“Opposition”) (ECF No. 17)
at 2-5. I agree.
The form that NP Hatch-Clein filled out listed 20 mental abilities bearing on an individual’s
ability to do work-related activities on a sustained basis. See Record at 500-01. She checked
boxes indicating that the plaintiff was markedly limited in, or effectively precluded from
performing, 17 of them. See id. She left blank the section of the form that requested “a diagnosis
and a brief indication of what medical or clinical findings support this assessment[.]” Id. at 501.
Hatch-Clein, a nurse practitioner, does not qualify as an “acceptable medical source” for
Social Security purposes, see 20 C.F.R. §§ 404.1513(a), 416.913(a) (versions in effect prior to Jan.
18, 2017). “[O]nly ‘acceptable medical sources’ can be considered treating sources, as defined in
20 CFR 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight.”
SSR 06-03p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp.
2016), at 329. Yet, evidence from “other sources” such as Hatch-Clein may not be ignored:
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not ‘acceptable medical
sources,’ such as nurse practitioners, physician assistants, and licensed clinical
social workers, have increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians and psychologists.
Opinions from these medical sources, who are not technically deemed ‘acceptable
medical sources’ under our rules, are important and should be evaluated on key
issues such as impairment severity and functional effects, along with the other
relevant evidence in the file.
Id. at 330. “The weight to which such evidence may be entitled will vary according to the
particular facts of the case, the source of the opinion, including that source’s qualifications, the
issue(s) that the opinion is about, and many other factors[.]” Id. at 331. Finally:
Although there is a distinction between what an adjudicator must consider and what
the adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these ‘other
sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of
Id. at 333.
This court has held that “a decision complies with the requirements of SSR 06-03p when
it makes clear that, had the administrative law judge expressly discussed the opinion of an ‘other
source,’ he or she would have rejected it.” Robshaw v. Colvin, No. 1:14-cv-281-JHR, 2015 WL
3951959 at *5 (D. Me. June 28, 2015) (citation omitted).
Here, the ALJ fulfilled his obligation under SSR 06-03p. He discussed NP Hatch-Clein’s
treatment notes, observing that many were at odds with the plaintiff’s testimony. See Record 1618. The notes reflected that, at various points, the plaintiff denied suffering from anhedonia and/or
depression, see id. at 17-18, 449-50, that she was not in acute distress and was alert, oriented, and
responding well to her medication, see id. at 17-18, 450-51, and that her depression was stable, see
id. at 17, 473. Further, the plaintiff stopped receiving treatment from NP Hatch-Clein for a year,
from September 2011 to September 2012. See id. at 17. Upon the plaintiff’s return to NP HatchClein’s care, it was noted that she was responding well to her medication, and the same assessment
was made in May 2014. See id. at 17-18, 493, 607. Finally, the ALJ noted that in 2013-14, the
plaintiff was caring for her two-year-old grandchild and that she had adequate attention,
concentration, and memory. See id. at 18, 525, 595.
As the commissioner persuasively argues in her brief, see Opposition at 2-5, because the
ALJ explained in some detail how, in his view, the Hatch-Clein treatment notes conflicted with
the plaintiff’s allegations of disabling limitations, it is clear that, had he expressly discussed the
Hatch-Clein Opinion, he would have rejected it. The Robshaw standard, thus, is met.
2. Dr. Siegel
The ALJ’s consideration of the opinion of Dr. Siegel reinforces the argument that, had he
expressly addressed NP Hatch-Clein’s opinion, he would have rejected it. Dr. Siegel was hired
by the plaintiff as a consultative examiner. See id. at 506. After examining the plaintiff, he too
filled out a Medical Source Statement of Ability To Do Work-Related Activities (Mental) form
(“Siegel Opinion”). See id. at 514-15. He deemed the plaintiff less restricted than had NP HatchClein, checking boxes indicating that she was markedly limited in, or effectively precluded from
performing, eight of the 20 listed activities. Compare id. at 500-01 with id. at 514-15. Even with
this less restrictive finding, the ALJ afforded the Siegel Opinion little weight for the reasons he
had discussed in summarizing the medical evidence of record and because it was “persuasively
refuted by Dr. Claiborn’s testimony.” Id. at 18. Accordingly, it is reasonably clear that, had the
ALJ discussed the Hatch-Clein Opinion, which was even more restrictive than that of Dr. Siegel,
he would have rejected it.
To the extent that the plaintiff challenges the ALJ’s treatment of the Siegel Opinion on its
face, I find no error. First, for the reasons discussed above, the ALJ reasonably deemed the
longitudinal evidence of record, including the Hatch-Clein treatment notes and the plaintiff’s
activities of daily living, inconsistent with the Siegel Opinion.
Second, the ALJ supportably concluded that the Claiborn testimony refuted the Siegel
Opinion. At oral argument, the plaintiff’s counsel contested that finding, contending that the
Siegel Opinion and the Claiborn testimony were consistent in that Dr. Claiborn testified that, while
the record suggested that the plaintiff had moderate impairments in social functioning and
concentration, persistence, or pace, her testimony suggested that she had marked impairments in
those domains. See id. at 56-57.
As counsel for the commissioner rejoined, however, the ALJ resolved any tension or
ambiguity in Dr. Claiborn’s testimony, assessing only moderate limitations in social functioning
and in concentration, persistence, or pace, and thereby adopting Dr. Claiborn’s opinion as to the
degree of functional impairment suggested by the medical record, rather than by the plaintiff’s
testimony. See id. at 15. The ALJ explained:
Providers have not documented difficulties interacting with the [plaintiff], whom
they usually describe as pleasant and cooperative. The [plaintiff] told Dr. Siegel
that she had no particular problems with attention, concentration or memory, and
clinicians have not observed difficulties in those areas. . . . Dr. Claiborn testified
that he believed the evidence supports the above degree of functional impairment
and the undersigned credits his assessment, finding it in accord with substantial
evidence of record.
Moreover, as the commissioner notes, see Opposition at 7, Dr. Claiborn testified that there
were inconsistencies between Dr. Siegel’s findings in his narrative report and his opinion, see
Record at 60. For example, in his narrative report, Dr. Siegel stated that the plaintiff’s “ability to
follow work rules is adequate but will be moderately impaired due to her interpersonal anxiety as
will her ability to relate to supervisors, coworkers, and the public.” Id. at 512. Yet, in the Siegel
Opinion, he checked off a box indicating that the plaintiff was markedly limited in, or effectively
precluded from, accepting instructions and responding appropriately to criticism from supervisors.
See id. at 515.
Third, and finally, although the ALJ was not required to provide “good reasons” for his
treatment of the opinion of Dr. Siegel, a one-time examining consultant, as he would for a treating
source, he did so here. See Bowie v Colvin, No. 2:12-cv-205-DBH, 2013 WL 1912913 at *7 (D.
Me. Mar. 31, 2013) (rec. dec., aff’d May 7, 2013) (“A onetime examining consultant is not a
‘treating source’ and therefore is not subject to the ‘treating source’ rule, pursuant to which a
medical opinion may be rejected only for good reasons.”) (citation and internal quotation marks
There was no error in the ALJ’s handling of the Siegel Opinion.
3. Dr. Claiborn
With respect to the Claiborn testimony, the plaintiff complains that the ALJ erred in
(i) failing to resolve Dr. Claiborn’s “equivocal views” on whether her limitations in social
functioning and in concentration, persistence, or pace were moderate or marked and (ii) “insist[ing]
that [Dr. Claiborn] confine his testimony to the record[,]” preventing him from expressing an
opinion taking into account her testimony at hearing. Statement of Errors at 3-5. At oral argument,
the plaintiff’s counsel further contended that it is unclear whether the ALJ intended that Dr.
Claiborn’s testimony regarding her RFC be restricted solely to the medical record or whether Dr.
Claiborn understood that it should be. As a result, she asserted, it is impossible to determine the
basis for the Claiborn RFC opinion. These arguments are without merit.
First, the ALJ did not direct Dr. Claiborn to confine his testimony to the medical records.
Rather, he asked him to rate the plaintiff’s degree of restriction in the various domains of
functioning. See Record at 56. Dr. Claiborn himself raised the issue that there were “some
differences between testimony and what the record seems to suggest.” Id. As discussed above, he
then testified that the medical evidence suggested a moderate degree of limitation, while the
plaintiff’s testimony suggested that her degree of limitation was marked. See id. at 56-67.
Second, Dr. Claiborn’s testimony was clear. There were no equivocal answers to be
squared, as the plaintiff suggests. It was the job of the ALJ to assess the credibility of the plaintiff’s
testimony. See, e.g., Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965) (“Issues of
credibility and the drawing of permissible inference from evidentiary facts are the prime
responsibility of the [commissioner].”). As noted above, he did so, explaining why he did not fully
credit her testimony and, hence, assessed moderate, rather than marked, limitations.
The plaintiff argues, in passing, that the ALJ’s credibility assessment was insufficiently
meaningful to resolve any ambiguities in that he merely deemed her testimony not “entirely”
credible and failed to discuss which specific portions he credited and which he did not. Statement
of Errors at 4-5 (quoting Record at 16). She cites Da Rosa v. Secretary of Health & Human Servs.,
803 F.2d 24, 26 (1st Cir. 1986), for the proposition that an ALJ’s determination “must be supported
by substantial evidence and the ALJ must make specific findings as to the relevant evidence he
considered in determining to disbelieve the appellant.” Id. at 4 (emphasis added by plaintiff).
As the commissioner rejoins, see Opposition at 10-11, the ALJ met that standard,
identifying specific evidence on which he based his credibility determination; for example, the
Hatch-Clein treatment notes, the existence of a yearlong gap in treatment, and the plaintiff’s
activities of daily living, see Record at 16-18. He was not obligated to identify which portions of
the plaintiff’s testimony he found credible and which he did not. See, e.g., Raymond v. Colvin,
No. 2:12-CV-374-GZS, 2014 WL 424156, at *3 (D. Me. Feb. 4, 2014) (noting that ALJ need not
have analyzed the credibility of each statement when, “overall, he found the [claimant] to have
‘little credibility,’ and specifically, he discredited any claimed restrictions inconsistent with those
set forth in his mental RFC determination”).
Third, and finally, there is no fatal ambiguity in the basis for Dr. Claiborn’s RFC opinion.
The ALJ asked him to “review with me your opinion” on a series of RFC components. Id. at 5759. The wording of those questions, as well as of Dr. Claiborn’s answers, suggests that Dr.
Claiborn provided his opinions – not his opinions as artificially confined by the ALJ to the medical
record. See, e.g., id. at 57-58 (“I think [the plaintiff] would be able to understand relatively simple
directions, but as the complexity or detail level increases she would begin to show significant
impairment so that she would be unable to understand or remember detailed instructions.”). Of
note, Dr. Claiborn went on to testify to the ways in which the Siegel narrative (as opposed to the
Siegel Opinion) corroborated his own opinions. See id. at 60 (“[Dr. Siegel] states that [the
plaintiff] would be best functioning independently. I agree.”).
B. The ALJ’s RFC Assessment
The plaintiff next argues that the ALJ’s RFC formulation is flawed because he failed to
address her limitations in multiple areas of functioning, as a result of which he lacked medical
support for his conclusions. See Statement of Errors at 5-9. I find no error.
The plaintiff relies on the ALJ’s asserted failure to seek Dr. Claiborn’s opinion on her
capacity to perform 14 mental abilities listed in the Social Security Program Operations Manual
System (“POMS”) as critical for performing unskilled work; for example, the abilities to “maintain
attention for extended periods of 2-hour segments[,]” “maintain regular attendance and be punctual
within customary tolerances],” “sustain an ordinary routine without special supervision[,]”
“complete a normal workday and workweek . . .[,]” and “accept instructions and respond
appropriately to criticism from supervisors.” Id.; POMS § DI 25020.010(B)(3).
She contends that, because the ALJ rejected the opinions of NP Hatch-Clein and Dr. Siegel
that she had marked limitations in many of the 14 critical abilities, he erred in relying on the
Claiborn testimony without eliciting his opinion on the same. See Statement of Errors at 5-9. She
notes, for example, that, although Dr. Claiborn testified that she had agoraphobia – the fear of
going out – and NP Hatch-Clein and Dr. Siegel both deemed her markedly limited in the ability to
complete a normal workday/workweek, the ALJ never asked Dr. Claiborn whether he found her
restricted in that ability. See id. at 5. At oral argument, her counsel asserted that she was seriously
limited, as well, in the ability to accept criticism from supervisors, and yet the ALJ never sought
Dr. Claiborn’s views on that point, either.
She concludes, “The problem is that there is a gap between those abilities which Dr.
Claiborn suggested, albeit equivocally, that [the plaintiff] retained despite her impairments and
those which the agency has determined she must possess in order to function in the work place.”
Id. at 8.
The plaintiff’s reliance on the 14 mental abilities listed in the POMS is misplaced. As the
commissioner points out, see Opposition at 14-16, the POMS itself indicates that each of the 14
abilities is part and parcel of the broader four basic mental demands needed to perform competitive,
remunerative, unskilled work, namely, the abilities (on a sustained basis) to (i) “understand, carry
out, and remember simple instructions[,]” (ii) “make judgments that are commensurate with the
functions of unskilled work, i.e., simple work-related decisions[,]” (iii) “respond appropriately to
supervision, coworkers and work situations[,]” and (iv) “deal with changes in a routine work
setting[,]” POMS § DI 25020.010(A)(3). The POMS explains that the specific mental abilities
listed in sections (B)(2) through (B)(5) – including the 14 mental abilities set forth in section (B)(3)
– correlate to section I, Summary Conclusions, of the commissioner’s RFC assessment form. See
id. § DI 25020.010(B)(1). It notes:
The purpose of section I (“Summary Conclusions”) on the [RFC assessment form]
is chiefly to have a worksheet to ensure that the psychiatrist or psychologist has
considered each of these pertinent mental activities and the claimant’s or
beneficiary’s degree of limitation for sustaining these activities over a normal
workday and workweek on an ongoing, appropriate, and independent basis. It is
the narrative written by the psychiatrist or psychologist in section III (“Functional
Capacity Assessment”) of [the RFC assessment form] that adjudicators are to use
as the assessment of RFC.
Id. (emphasis omitted).
This is consistent with Social Security Ruling SSR 85-15 (“SSR 85-15”), which provides:
The basic mental demands of competitive, remunerative, unskilled work include
the abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting. A substantial loss of
ability to meet any of these basic work-related activities would severely limit the
potential occupational base.
SSR 85-15, reprinted in West’s Social Security Reporting Service, Rulings 1983-1991, at 347.
Relying on the same POMS section cited by the plaintiff, this court rejected a claimant’s
bid for remand on the basis of an ALJ’s failure to address specific findings set forth in section I of
a mental RFC form. See Riley v. Astrue, No. 06-95-B-W, 2007 WL 951424, at *6 (D. Me. Mar.
27, 2007) (rec. dec., aff’d Apr. 16, 2007), (noting, “When one compares the [ALJ’s mental RFC]
assessment with those of [three agency nonexamining consultants] as articulated in section III of
[the commissioner’s mental RFC] form, it is apparent that he did indeed give their findings
considerable weight and that his assessment is consistent with theirs.”). See also, e.g., Dubriel v.
Astrue, Civil No. 08-406-B-W, 2009 WL 1938986, at *4 (D. Me. July 6, 2009) (rec. dec., aff’d
July 24, 2009) (same). The ALJ, accordingly, was not required to elicit Dr. Claiborn’s opinion on
the 14 mental abilities contained within section I of the commissioner’s mental RFC form.
As the commissioner observes, see Opposition at 13-14, the ALJ elicited Dr. Claiborn’s
testimony on the broader four basic mental demands needed to perform unskilled work and relied
on his responses in crafting his RFC determination, compare Finding 5, Record at 16 with id. at
57-60. The ALJ’s RFC determination, accordingly, is supported by substantial evidence in the
form of the Claiborn testimony, as well as his discussion of the longitudinal record evidence
C. The ALJ’s Step 5 Conclusion
The plaintiff finally contends that the administrative law judge’s Step 5 finding was
unsupported by substantial evidence in that he relied on vocational testimony predicated on a
flawed RFC finding. See Statement of Errors at 9. This argument hinges on the success of the
plaintiff’s RFC arguments, which I have rejected for the reasons discussed above. Accordingly, it
forms no basis for remand. See, e.g., Bowden v. Colvin, No. 1:13-CV-201-GZS, 2014 WL
1664961, at *4 (D. Me. Apr. 25, 2014) (“I have rejected [the claimant’s] arguments about the RFC,
so this corollary argument regarding the hypothetical question [posed to a vocational expert] must
fail as well.”).
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 25th day of June, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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