Scott v. Commissioner of Social Security
REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded pursuant to Sentence Four of 42 USC 405(g) for further proceedings consistent with this opinion. Objections to R&R due by 4/3/2017. Signed by Magistrate Judge Karen L. Litkovitz on 3/20/2017. (art)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:16-cv-697
Plaintiff Crystal F. Scott brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security (Commissioner) denying
plaintiffs application for disability insurance benefits (DIB). This matter is before the Court on
the Commissioner's memorandum in support of the motion to remand for further proceedings
(Doc. 14) and plaintiffs reply memorandum seeking a reversal for an immediate award of
benefits (Doc. 15).
I. Procedural Background of Administrative Proceedings
Plaintiff filed an application for disability insurance benefits (DIB) in May 2011, alleging
disability beginning on June 30, 2010. Plaintiffs insured status for DIB expired on December
31, 2015. Two administrative hearings were held on plaintiffs application for benefits.
Following the first hearing, Administrative Law Judge (ALJ) Irma Flottman issued a
decision denying plaintiffs claim for benefits. (Tr. 199-218). Plaintiff appealed ALJ Flottman' s
decision to the Appeals Council, which remanded plaintiffs case to the ALJ for resolution of the
following issues: ( l) further evaluation of the treating source opinion of Dr. Jonathan Rosenthal,
M.D., plaintiffs treating psychiatrist, and (2) further development and evaluation of the evidence
related to plaintiffs arthritis of the right leg and any resulting work-related limitations. (Tr. 219223). The Appeals Council found that ALJ Flottman had not adequately evaluated Dr.
Rosenthal 's treating source opinion and the limitations the treating psychiatrist assessed. (Tr.
220). Further, the Appeals Council found that while the ALJ cited a May 23, 2012 x-ray that
"revealed arthritic changes, marked narrowing of the joint space, and hypertrophic osteophytes in
the right knee,'' the ALJ did not assess the severity of plaintiffs right knee impairment, for
which she required treatment. (Id.) . The Appeals Council therefore ordered the ALJ on remand
to do the following: (1) obtain additional evidence concerning plaintiffs impairments including,
if warranted and available, consultative mental status examinations and medical source
statements about what plaintiff could still do despite her impairments in order "to complete the
administrative record in accordance with the regulatory standards regarding consultative
examinations and existing medical evidence (20 CFR 404.1512-1513)"; (2) further consider
plaintiffs maximum residual functional capacity (RFC] during the entire period at issue with
supporting rationale and specific references to evidence in the record supporting the assessed
limitations, and evaluate the treating source opinion of Dr. Rosenthal as part of that analysis; and
(3) obtain supplemental evidence from a VE if warranted. (Tr. 221-22).
The second hearing on plaintiffs application was held by a different ALJ, Gregory
Kenyon. (Tr. 107-138). ALJ Kenyon again denied plaintiffs DIB application. (Tr. 82-106).
Plaintiff appealed to the Appeals Council, which denied plaintiffs request for review. (Tr. 1-7).
Plaintiff then filed this civil action challenging the Commissioner's final decision
denying her application for DIB. (Doc. 3). In response to plaintiffs statement of errors (Doc.
9), the Commissioner filed a unilateral motion for voluntary remand under sentence four of 42
U.S.C. § 405(g) and requested a remand for further administrative proceedings and a new
decision by an ALJ. (Doc. 10). Pl aintiff opposed the motion for voluntary remand, seeking an
immediate award of benefits based on overwhelming evidence of disability. (Doc. 11). In reply,
the Commissioner conceded that ALJ Kenyon' s decision "was flawed and cannot be defended";
however, the Commissioner argued that a remand for an award of benefits was not warranted
because "not all essential fac tual issues have been resolved." (Doc. 12 at 1-2).
On January l 0, 2017, the Court denied the Commissioner' s motion for voluntary remand .
(Doc. 13). Because the Commissioner concedes that the ALJ's decision caru1ot be defended, the
only issue in thi s appeal is whether this matter should be reversed and remanded for rehearing or
reversed for an immediate award of benefits. 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501
U. S. 89, 100 (1991). Accordingly, the Court ordered the parties to file supplemental briefs on
this remaining issue. This matter is now ripe for resolution.
II. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(l)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
l ) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
Rabbers v. Comm 'r ofSoc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404. l 520(a)(4)(i)-(v), 404. l 520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id. ; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541 , 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
III. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] met the insured status requirements of the Social Security Act
through December 31 , 2015.
2. The [plaintiff] has not engaged in substantial gainful activity since June 30,
2010, the alleged onset date (20 CFR 404.1571 et seq.) .
3. The [plaintiff] has the following severe impairments: degenerative joint
disease of the knees, obstructive sleep apnea, obesity, depression, and an anxiety
disorder (20 CFR 404.1520(c)).
4. The [plaintiff] does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20
CFR Pat1 404, Subpart P, Appendix 1 (20 CFR 404. l 520(d), 404.1525 and
5. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] has the residual functional capacity to perform light work 1 as defined in
20 CFR 404.1567(b) subject to the following limitations: (1) occasional
crouching, crawling, kneeling, stooping, balancing, and climbing of ramps and
stairs; (2) no climbing of ladders, ropes or scaffolds; (3) no work around hazards,
such as unprotected hei ghts or dangerous machinery; (4) no driving of automotive
equipment; (5) no concentrated exposure to temperature extremes or respiratory
irritants; (6) limited to performing unskilled, simple, routine, repetitive tasks; (7)
occasional contact with coworkers and supervisors; (8) no public contact; (9) no
jobs involving teamwork or tandem tasks; (10) no jobs involving close over the
shoulder supervision ; ( 11) no fast paced production work or jobs involving strict
production quotas; and ( 12) limited to performing jobs in a relatively static work
environment in which there is very little, if any, change in the job duties or the
work routine from one day to the next.
6. The [plaintiff] is unable to perform any past relevant work (20 CFR
7. The [plaintiff] was born [in] ... 1960 and was 49 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date. The
[plaintiff] subsequently changed age category to closely approaching advanced
age (20 CFR 404.1563).
8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the (plaintiff] is "not disabled," whether or not the [plaintiff] has transferable
job ski lls (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
I 0. Considering the [plaintiffs] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569 and 404.1569(a)). 3
Social Security regulations state that light work requires the ability to do a "good deal" of wal king and
standing. 20 C.F.R. § 404.1567. Social Security Ruling 83- 10 states that light work requires walking at
least six of eight hours in a workday.
Plaintiffs past relevant work was as a customer service clerk, a cashier, and a dry cleaner helper, all performed at
the light level of exertion.
11. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, from November 8, 2011 , through the date of [the ALJ's] decision
(20 CFR 404. l 520(f)).
IV. This matter should be reversed and remanded for further administrative proceedings.
As indicated, the Commissioner concedes that the ALJ's decision denying plaintiffs DIB
application .. was flawed and cannot be defended." (Doc. 12). Therefore, the only issue in this case is
whether this matter should be reversed and remanded for an outright award of benefits as of
plaintiff's alleged onset date of June 30, 20 I 0 or for further administrative proceedings.
In a case where the final decision of the Commissioner is not supported by substantial
evidence, the Court has authority to affirm, modify or reverse the Commissioner's decision "with
or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 50 I
U.S. 89, 100 (1991). Generally, benefits may be awarded immediately "only if all essential factual
issues have been resolved and the record adequately establishes a plaintiffs entitlement to
benefits." Faucher v. Sec. ofHHS , 17 F.3d 171 , 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec. of HHS , 820 F.2d 777, 782 (6th Cir. 1987). The
Court may award benefits where the proof of disability is strong and opposing evidence is lacking
in substance, so that remand would merely involve the presentation of cumulative evidence, or
where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen,
35 F.3d 1027, 1041 (6th Cir. 1994).
The ALJ relied on the VE's testimony to find that plaintiff would be able to perform the requirements of jobs at
the light exertional level such as mail clerk (50,000 jobs nationally), routing clerk (68,000 jobs nationall y), and
collator operator (30,000 jobs nationally). (Tr. 98).
Plaintiff requests a reversal and remand for an immediate award of benefits as of her alleged
onset date of June 30, 2010 for two reasons. First, plaintiff alleges that "the evidence of record
overwhelmingly demonstrates that [plaintiffs] physical impairments, particularly her documented
bilateral knee arthritis in combination with her exogenous obesity, limited her to a sedentary level
of exertion during this entire period of time." (Doc. 15 at 2). Plaintiff asserts that under the
Commissioner' s medical-vocational guidelines for sedentary work for individuals "closely
approaching advanced age," plaintiff would be considered disabled as of December 31 , 2010, the
date she turned 50 years old. See 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 201.12. Plaintiff further
alleges that a non-mechanical application of the grid rules warrants a finding of disability as of her
alleged onset date of June 30, 2010, which was a mere six months before the date she turned 50.
(Doc. 15, citing 20 C.F.R. § 404.1563).
Second, plaintiff alleges that the actions of ALJ Kenyon and the Appeals Council warrant a
remand for an immediate award of benefits. Plaintiff contends that this matter was remanded to the
ALJ by the Appeals Council for the specific issue of "further development and evaluation" of
plaintiffs right knee impairment, based on the May 2012 x-ray evidence showing arthritic changes,
marked narrowing of the joint space, and hypertrophic osteophytes in the right knee. (Tr. 221 ).
She alleges that on remand, ALJ Kenyon failed to comply with the Appeals Council's directive and
simply relied on the state agency reviewers' decisions from 2011 , which obviously did not include
the 2012 evidence upon which the Appeals Council based its remand. Then, inexplicably, the
Appeals Council without any analysis affirmed ALJ Kenyon's decision without acknowledging the
ALJ's failure to comply with the Appeals Council's previous directive. Plaintiff essentially argues
that it is fundamentally unfair to remand this case for yet another administrative hearing where the
Appeals Council chose to forego an opportunity to rectify ALJ Kenyon's erroneous decision two
and one-half years ago, and plaintiffs application has been pending for more than five years.
In determining whether this matter should be remanded for an immediate award of benefits
as of plaintiffs alleged onset date of June 30, 2010, the Court must determine whether the proof of
disability is strong and opposing evidence is lacking in substance, so that remand would merely
involve the presentation of cumulative evidence, or whether the proof of disability as of June 30,
2010 is overwhelming. Faucher, 17 F.3d at 176. Plaintiff acknowledges that she received very
little medical treatment for her knees between June 30, 2010, her alleged onset date, and ALJ
Kenyon' s decision in early 2015, which she attributes to a lack of health insurance. (Tr. 130, 150).
Plaintiff cites to two emergency department visits and x-ray evidence during the relevant time
period showing severe arthritis of both the left and the right knees. (Tr. 629, 663). Plaintiff also
cites to evidence she submitted to the Appeals Council subsequent to ALJ Kenyon's decision from
Dr. Jerry Magone and Atrium Medical Center. Plaintiff was examined by Dr. Magone, an
orthopedist, on April 13, 2015. Dr. Magone reviewed x-rays which demonstrated "severe end stage
osteoarthritis" of both knees. (Tr. 73). Plaintiffs weight had increased to 374 pounds at that time.
(Id.). Plaintiff subsequently underwent a total right knee replacement in June 2015. (Tr. 8-68).
Although the additional reports plaintiff submitted to the Appeals Council from Dr. Magone
and the Atrium Medical Center strongly support a finding of a disability onset date prior to ALJ
Kenyon's January 2015 decision, the Court may not consider this evidence in determining the
remedy in this case. Where the Appeals Council denies review, as in this case, it is the ALJ's
decision that is considered the "final" decision of the Commissioner. Cotton v. Sullivan, 2 F.3d
692, 696 (6th Cir. 1993). See also Smith v. Comm 'r o/Soc. Sec., No. 2:12-cv-12160, 2013 WL
5243448, at *4 (E.D. Mich. Sept. 18, 2013). In conducting its review of the Commissioner's
decision, the district court cannot consider evidence that was not presented to the ALJ. Elliott v.
Apfel, 28 F. App'x 420, 423 (6th Cir. 2002) (citing Cline v. Comm 'r ofSoc. Sec. , 96 F.3d 146, 148
(6th Cir. 1996); Cotton, 2 F.3d at 696). This is so even if the Appeals Council considered newly
presented evidence in deciding to deny review. Id. at 424. Thus, the only evidence the Court may
consider in determining whether plaintiffs left and right knee impairments limited her to sedentary
work and support plaintiffs request for an immediate award of benefits is the x-ray evidence from
2011 and 2012 and the other evidence ofrecord that was presented to the ALJ.
Records from plaintiffs March 12, 2011 emergency department visit show that plaintiff
complained of diffuse pain to both knees. On examination, there was no redness, swelling, red
streaks or joint effusion of the knees. Plaintiff had full range of motion "with discomfort" and no
gross joint instability. (Tr. 626). X-rays of plaintiffs left knee showed "tricompartmental
osteoarthritis of the left knee, severe in the medial compartment." (Tr. 629). Plaintiffs weight at
that time was recorded as 300 pounds, with her height listed as five foot five inches. (Tr. 626).
The emergency room physician interpreted the x-ray findings as showing "decreased joint space
medially with some degenerative changes.. . ." (Tr. 626). In reviewing the x-ray and emergency
department report as part of their respective July 2011 and December 2011 record reviews, the state
agency doctors determined that plaintiff retained the ability to perform light work activity. (Tr.
178-79, 191-93 ). There is no other medical opinion or evidence predating the March 2011
evidence to shed light on plaintiffs left knee condition as of her alleged onset date. The Court
cannot say that the March 2011 evidence overwhelmingly establishes plaintiffs left knee
impairment was disabling as of June 30, 2010, especially in view of the medical opinion evidence
suggesting plaintiff could perform light work at that time.
X-rays of plaintiffs right knee obtained during an emergency room visit on May 22, 2012
showed "arthritic changes ... in the medial compartment of the right knee with marked narrowing
of the joint space and hypertrophic osteophytes." (Tr. 663). Plaintiffs weight on this date was not
recorded. Emergency department records indicate that plaintiff experienced a fall; she complained
of mild to moderate pain in the anterior soft tissue of the right leg; and she was ambulatory with
some discomfort. (Tr. 659). On exam, she had "some indications of minor injury or trauma" and
had full function, full mobility, intact sensation, intact capillary refill, and no indications of
neurovascular or neuromuscular deficits. (Tr. 661 ). X-rays showed no acute fractures or bony
abnormalities, though known chronic osteoarthritis was visible in her right knee. (Tr. 663). She
was discharged home with some temporary medications and a referral to orthopedics "use as
needed. " (Tr. 661 ). On discharge, plaintiff was ambulatory and did not require crutches, a walker,
or a wheelchair. (Id.). As was the case in March 2011, there is no medical evidence relating
plaintiffs right knee impairment back to June 30, 2010, plaintiffs alleged onset date.
Although the 2012 evidence of plaintiffs right knee impairment, coupled with the 2011 xray evidence of the left knee and plaintiffs obesity, strongly suggests that plaintiff may have been
limited to sedentary work at this time, there is insufficient evidence to conclude that her bilateral
knee condition related back to her alleged onset date of June 30, 2010, nearly two years earlier.
The Court cannot conclude that the evidence of plaintiffs knee impairment and obesity is
overwhelming evidence of disability so as to justify an immediate award of benefits as of June 30,
Plaintiff nevertheless argues that common sense dictates that a "massively obese woman in
her 50s with significant arthritis in both knees couldn't reasonably be expected to be on her feet
standing or walking at least 6 hours out of 8 required of light work." (Doc. 15 at 6). While this
may be a reasonable conclusion to draw from the evidence, plaintiffs argument begs the question
at the heart of this case: when did plaintiffs bilateral knee impairment limit her to sedentary work?
As there is no record evidence of bilateral knee arthritis until May 2012, the Court cannot conclude
that the record overwhelmingly supports a finding that plaintiff was limited to sedentary work on
June 30, 2010.
The other evidence of record fails to support a finding of disability dating back to June 30,
2010. The record shows that plaintiff suffers from COPD, but that condition was not diagnosed
until 2014. (Tr. 689, 697, 769). Plaintiff was employed when she was first diagnosed with sleep
apnea, some six years before her alleged onset date in 2004, and the medical records do not
reference sleep apnea again until September 2010. (Tr. 525, 564-66). In September 2010, plaintiff
was advised to resume use of her CPAP machine after plaintiff reported she had not used the
machine for three years. (Tr. 564-66). The next report of sleep apnea in the record is not until
2014. (Tr. 697). On the basis of a psychological consultative examination performed in August
2011 (Tr. 632-37), state agency psychologists assessed plaintiff as capable of work involving
simple tasks with other non-work preclusive limitations. (Tr.179-81 , 193-96). Plaintiff did not
begin mental health treatment until 2012 (Tr. 640) and there is no indication in the medical
assessment her treating psychiatrist made in February 2013 that the limitations from plaintiffs
mental impairments related back to June 2010. (Tr. 675-76). Finally, plaintiff stopped working in
June 2010 because of her impending relocation to another state and not because of her impairments.
(Tr. 145). Cf. Social Security Ruling 83-20, 1983 WL 31249, at *2 ("the day the impairment
caused the individual to stop work is frequently of great significance" in determining the date of
onset). The evidence of plaintiffs other impairments does not provide overwhelming proof of
disability as of plaintiffs alleged onset date of June 30, 2010.
Next, plaintiff contends the actions of ALJ Kenyon and the Appeals Council warrant a
reversal for an immediate award of benefits in this case. Plaintiff alleges that despite the Appeals
Council's initial remand to the ALJ for further development and evaluation of the May 2012
evidence related to plaintiffs arthritis of the right leg and any resulting work-related limitations
(Tr. 219-223), ALJ Kenyon failed to adhere to that directive. Instead, ALJ Kenyon relied on the
2011 opinions of the state agency physicians to conclude plaintiff could perform light work
activity, even though those physicians did not have the benefit of the May 2012 x-ray evidence.
(Tr. 95). On subsequent review, the Appeals Council declined to review ALJ Kenyon' s opinion.
Plaintiff argues that "the Appeals Council now wants the case to come back" some two and onehalf years after it abdicated its responsibility to ensure ALJ Kenyon on remand complied with its
original directive. Plaintiff alleges that there is no serious question that at some point her bilateral
knee impairments and her obesity rendered her unable to perform the six hours of standing per day
needed for light work, and the only issue would be when she was limited to sedentary work.
The Court has concluded in some cases where an application has been pending for a number
of years that there is no just reason to further delay resolution of a disability application by
requiring additional administrative proceedings. However, those cases involve proof of disability
that is strong and opposing evidence that is lacking in substance. See, e.g., Campbell v. Colvin, No.
3:15cv363, 2016 WL 6581336, at *3 (S.D. Ohio Nov. 7, 2016), report and recommendation
adopted, 2016 WL 7496736 (S.D. Ohio Dec. 30, 2016) (citing Gentry v. Comm'r ofSoc. Sec., 741
F.3d 708, 730 (6th Cir. 2014) (remanding for benefits after 2 remands and 3 administrative hearings
and finding, "In light of the extensive opinions of treating physicians as to the severity of Gentry' s
psoriasis and psoriatic arthritis, we conclude that substantial evidence on the record as a whole
supports a finding of total disability.")). Though plaintiffs application has been pending for almost
six years, that reason alone does not justify a remand for an immediate award of benefits absent
strong proof that plaintiff was limited to sedentary work as of June 30, 2010. For the reasons
described above, proof of disability as of the alleged disability onset date is not particularly strong.
Though the evidence of plaintiffs physical and mental impairments strongly suggests that plaintiff
may have become disabled sometime before ALJ Kenyon's January 2015 decision, under the
date of disability are factual questions that must be detennined by the Commissioner in the first
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED pursuant to
Sentence Four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
Date: _.....::.... / ;t.J:> /__! _ __
5..___ __.. _?-
Karen L. Litko~itz
United States Magistrate Judge
Plaintiff notes that she has now been found disabled as of June I , 2015 based on a subsequently filed application.
(Doc. 15, Ex. A). She requests that any remand decision by this Court expressly state that such determination is not to
be reviewed or re-opened by the agency on remand. Plaintiff has not presented, and the Court is not aware, of any legal
authority permitting the Court to order this remedy.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
CRYSTAL F. SCOTT,
Case No. I: l 6-cv-697
NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected to
and shall be accompanied by a memorandum oflaw in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981 ).
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