Johnson v. Commissioner Social Security Administration
OPINION AND ORDER - The Court AFFIRMS the Commissioner's final decision and DISMISSES this matter. Signed on 1/27/2017 by Judge Anna J. Brown. (pg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CAROLYN W. COLVIN,
Commissioner, Social Security
BRUCE W. BREWER
P.O. Box 421
West Linn, OR 97068
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
1 - OPINION AND ORDER
OPINION AND ORDER
Regional Chief Counsel
FRANCO L. BECIA
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
Attorneys for Defendant
Plaintiff Renae Johnson seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C.
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
Plaintiff filed an application for Disability Insurance
Benefits (DIB) on November 18, 2001, and alleged a disability
onset date of October 1, 1997.
Tr. 45. 1
denied initially and on reconsideration.
The application was
An Administrative Law
Judge (ALJ) held a hearing on December 3, 2003.
Citations to the official transcript of record filed by
the Commissioner on June 10, 2016, are referred to as "Tr."
2 - OPINION AND ORDER
hearing Plaintiff was represented by an attorney.
vocational expert (VE), and lay witnesses testified at the
The ALJ issued a decision on February 18, 2004, in which he
found Plaintiff was not disabled, and, therefore, was not
entitled to DIB.
Plaintiff appealed the matter to the
United States District Court.
On October 6, 2005, United States
District Judge Ann Aiken granted the parties' stipulated Motion
On October 11, 2005, Judge Aiken entered a Judgment
An ALJ held a hearing on remand on May 10, 2006.
On May 23, 2006, an ALJ issued a decision on remand in which he
found Plaintiff was not disabled through her December 31, 2004,
date last insured.
Pursuant to 20 C.F.R.
404.984(d), that decision became the final decision of the
Commissioner when the Appeals Council denied Plaintiff's request
Plaintiff did not appeal the Appeal Council's denial
to the United States District Court.
On May 12, 2006, Plaintiff filed an application for SSI and
alleged a disability onset date of October 1, 1997.
Plaintiff subsequently amended her alleged onset date to May 12,
The application was denied initially and on
An Administrative Law Judge (ALJ) held a
hearing on March 30, 2009.
3 - OPINION AND ORDER
At the hearing Plaintiff was
represented by an attorney.
Plaintiff and a vocational expert
(VE) testified at the hearing.
The ALJ issued a decision on June 17, 2009, in which he
found Plaintiff was not disabled and, therefore, was not entitled
Plaintiff appealed the matter to the United
States District Court.
On June 4, 2012, United States District
Judge Ann Aiken entered a Judgment of Remand.
On September 27, 2012, the Appeals Council entered an order
in which it remanded the matter to the ALJ to "[f)urther evaluate
[Plaintiff's) mental impairment," to "[g)ive further
consideration to [Plaintiff's) maximum [RFC) and provide
appropriate rationale with specific references to evidence in
support of the assessed limitations," and to "obtain evidence
from a vocational expert to clarify the effect of the assessed
limitations on [Plaintiff's) occupational base."
An ALJ held a hearing on remand on November 4, 2013.
At the hearing Plaintiff was represented by an
attorney, and Plaintiff and a lay witness testified.
December 9, 2013, an ALJ issued a decision on remand in which he
found Plaintiff is not disabled.
Pursuant to 20
C.F.R. § 404.984(d), that decision became the final decision of
the Commissioner when the Appeals Council denied Plaintiff's
request for review.
103, 106-07 (2000).
4 - OPINION AND ORDER
See Sims v. Apfel, 530 U.S.
Plaintiff was born on February 27, 1970, and was 43 years
old at the time of the 2009 hearing.
graduated from high school.
Plaintiff has past
relevant work experience as a cashier, janitor, and airport
Plaintiff alleges disability due to fibromyalgia, a back
injury, a cognitive disorder, arthritis, weakness in her right
leg, and depression.
Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ's summary of the
See Tr. 1089-91, 1095-99.
The initial burden of proof rests on the claimant to
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which .
. has lasted or can be expected to last for
a continuous period of not less than 12 months."
423(d) (1) (A).
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
5 - OPINION AND ORDER
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F. 3d
453, 459-60 (9ili Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
See also Brewes v. Comm'r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685,
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence)
but less than a preponderance.
(citing Valentine, 574 F.3d
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
6 - OPINION AND ORDER
The court may not substitute its judgment for that of the
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 416.920.
Each step is potentially
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
20 C.F.R. § 416.920(b).
Soc. Sec., 648 F.3d 721, 724
See also Keyser v. Comm'r of
At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe
impairment or combination of impairments.
See also Keyser,
648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a) (4) (iii).
7 - OPINION AND ORDER
See also Keyser,
648 F.3d at 724.
_ criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix l
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's Residual Functional Capacity (RFC).
claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
See also Social Security Ruling (SSR)
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm'r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F. 2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
See also Keyser,
20 C.F.R. § 416.920(a)(4)(iv).
648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a) (4) (v).
Keyser, 648 F.3d at 724.
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
8 - OPINION AND ORDER
national economy that the claimant can perform.
Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
If the Commissioner meets this burden, the claimant
is not disabled.
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her May 12, 2006,
At Step Two the ALJ found Plaintiff has the severe
impairments of chronic neck pain due to disc protrusion at C6-7,
chronic low-back pain due to compression fractures and
degenerative disc disease, fibromyalgia, a cognitive disorder,
and an anxiety disorder.
The ALJ found Plaintiff's
conditions of a somatoform disorder and a conversion disorder are
not medically determinable impairments.
At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.
The ALJ found Plaintiff
has the RFC to lift and/or to carry ten pounds frequently and 20
9 - OPINION AND ORDER
The ALJ found Plaintiff could
occasionally reach overhead; climb ladders, ropes, or scaffolds;
bend; twist; crouch; crawl; and interact with the public.
The ALJ found Plaintiff can perform one-to-three step
routine work and "must have the option to sit or stand at will."
At Step Four the ALJ found Plaintiff is unable to perform
her past relevant work.
At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy.
Accordingly, the ALJ found Plaintiff is not disabled.
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff's testimony in part,
(2) improperly rejected
the testimony and statements of lay witnesses, and (3) improperly
failed to reassess Plaintiff's RFC and instead adopted the RFC
finding from the 2004 decision on Plaintiff's DIB application.
The ALJ did not err when he partially rejected Plaintiff's
Plaintiff alleges the ALJ erred by failing to provide clear
and convincing reasons for partially rejecting her testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
10 - OPINION AND ORDER
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cotton, 799 F.2d 1403 (9th Cir.
1986), aff'd in Bunnell v. Sullivan,
947 F.2d 341 (9th Cir.
The claimant, however, need not produce objective medical
evidence of the actual symptoms or their severity.
F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007) (citing Lester v. Chater, 81 F. 3d 821, 834
General assertions that the claimant's testimony is
not credible are insufficient.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
(quoting Lester, 81 F.3d at 834).
At the November 2013 hearing on remand Plaintiff testified
she has pain in her lower back, her right leg, her neck, and her
Plaintiff stated her pain has become worse since her
March 2009 hearing.
Plaintiff stated she is "on 90 Percocets,"
Neurontin, and muscle relaxers in an effort to control her pain.
The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to cause some symptoms,"
but Plaintiff's testimony "concerning the intensity, persistence
11 - OPINION AND ORDER
and limiting effects of [her] symptoms are not entirely
The ALJ stated the record as a whole was
inconsistent "with the debilitating symptoms and limitations"
alleged by Plaintiff.
For example, the ALJ noted Plaintiff
underwent a cervical fusion in April 2006 to address a disc
herniation at C6-7.
In July 2006 Plaintiff underwent ankle
surgery on her right ankle.
In October 2006 Plaintiff reported
doing very well and had only occasional complaints of ankle pain.
In September 2006 Christopher Komanapalli, M.D., examined
Dr. Komanapalli noted Plaintiff transferred easily
from her chair to the examination table and sat comfortably.
Plaintiff was able to walk to the examination room
without difficulty, to perform finger-to-nose coordination
exercises, and to perform heel-to-knee and heel-to-toe transfers.
Plaintiff's muscle strength was five out of five in her
upper and lower extremities.
Dr. Komanapalli noted
"significant evidence of poor effort and inconsistencies" during
The ALJ noted the record did not establish there had been
any significant change in Plaintiff's condition or in the
objective findings since earlier administrative proceedings.
example, a December 2006 MRI of Plaintiff's lumbar spine showed
only mild degenerative changes and mild foraminal narrowing.
12 - OPINION AND ORDER
In September 2007 Plaintiff's treating physician, Julie
Paquette, M.D., reported Plaintiff was frustrated with the test
results that did not indicate any connective tissue disease.
Plaintiff "demand[ed] that more tests be done," but
Dr. Paquette explained she had "exhausted the tests and referral
to specialists to evaluate [Plaintiff's] complaints."
Dr. Paquette suggested Plaintiff find another primary-care
provider to take over her medical care if she "wish[ed) to pursue
further work up."
Tr. 7 59.
In November 2007 Plaintiff was seen by Normy Chiou, M.D.
Plaintiff reported her neck pain improved 50% and she "functions
well," but she needed a refill of Percocet.
Plaintiff had normal gait and station.
Dr. Chiou noted
however, described Plaintiff as a "difficult historian easily
distracts self to mention multiple physical sensations and refers
back to history and previous tests."
In April 2008 Christopher Ginocchio, M.D., evaluated
Plaintiff reported lightheadedness, dizziness, poor
balance, back pain, right-leg pain, and headaches.
noted "very slight weakness" in Plaintiff's neurologic
examination, but he did not find any evidence of nerve damage and
concluded the slight weakness "did not represent an underlying
13 - OPINION AND ORDER
Dr. Ginocchio noted Plaintiff had a normal lumbar MRI and a
negative straight-leg raise.
Dr. Ginocchio recommended
conservative treatment of physical therapy and use of antiinflammatories.
On October 23, 2008, Karen Campbell, treating Nurse
Practitioner, noted Plaintiff arrived with "federal papers for
Plaintiff advised N.P. Campbell
that "[s]he feels like she is with the wrong provider if I will
not sign papers to forgive her loans."
however, reported she was '[u]nable to sign a federal form
stating disability and loan forgiveness."
In June 2009 Plaintiff underwent an MRI of her brain.
results were normal and unchanged from a previous MRI.
N.P. Campbell noted in June 2009 that Plaintiff was "tearful and
very angry" about the denial of her application for SSI.
In December 2009 x-rays of Plaintiff's lumbar spine showed
only mild thoracolumbar scoliosis, multilevel degenerative
changes, and wedging of the Ll and L2 vertebral bodies related to
"old compression fractures."
Plaintiff's right hip were normal.
In August 2011 x-rays of
In October 2011
x-rays of Plaintiff's right foot were also normal.
In January 2012 Plaintiff reported to Nurse Practitioner
Karen Briggs that she had been doing yoga and pilates and felt
14 - OPINION AND ORDER
that her body was "flared up."
N.P. Briggs, however,
found on examination that Plaintiff had only mild tenderness with
lateral bending and her range of motion was "intact."
On October 5, 2012, N.P. Briggs noted Plaintiff was
[d]emanding I sign her papers for disability.
reports I signed these forms last year.
have currently changed . . . and appear patient
must fit the criteria according to the law and
determined to be disabled. .
[S]he has not
been determined disabled.
I therefore could not
agree to sign the papers for her housing.
became very angry and demanded to be transferred
to another provider.
In October 2012 Plaintiff established care with N.P. Heather
N.P. Reed noted Plaintiff had "normal gait and station"
and recommended a muscle relaxer for a muscle spasm in her neck.
In January 2013 Plaintiff requested N.P. Reed sign
"paperwork from the housing authority" to certify Plaintiff as
N.P. Reed advised Plaintiff that she would
need "to review the requirements for disability certification"
and to review Plaintiff's records.
In February 2013 Oleg Maksimov, M.D., examined Plaintiff and
noted she "ambulat[ed] freely around the room, transfer[red] to
and from the table without difficulties," and had "no ataxia."
Plaintiff had a normal range of motion and normal
strength in her lower extremities.
prescribed Neurontin and ordered an MRI of Plaintiff's lumbar
15 - OPINION AND ORDER
Plaintiff's March 2013 MRI of her lumbar spine showed
"moderate degenerative disc disease at L3-L4 where there is mild
to moderate neural foramina narrowing."
In March 2013 Suzanne Delea, M.D., examined Plaintiff and
diagnosed her with fibromyalgia.
recommended "physical therapy with aerobic exercise [,
cognitive behavioral therapy[,
good sleep hygiene."
. and] the regular practice of
Dr. Maksimov examined Plaintiff again in May and June 2013
and noted Plaintiff "ambulate[d] freely around the room" and had
normal range of motion and strength in her extremities.
Tr. 1197, 1201.
On May 23, 2013, Dr. Ginocchio examined Plaintiff again and
noted Plaintiff's cranial nerves were grossly intact.
Dr. Ginocchio noted Plaintiff had "good strength of upper and
lower extremities"; her muscles had "normal bulk and tone"; her
gait had "normal base, arm swing, an stride"; and she had "good
heel, toe and tandem walking."
Dr. Ginocchio did not
note any tremor, and Plaintiff's straight-leg raise was negative.
Dr. Ginocchio stated Plaintiff's overall neurological
examination was "rather unremarkable."
He did not
find any evidence of significant neurological compromise to
suggest radiculopathy and did not "feel . . further neuro-imaging
16 - OPINION AND ORDER
Dr. Ginocchio recommended physical
therapy and pain-management of Plaintiff's fibromyalgia.
An ALJ may consider the medical evidence as a relevant
factor when determining a claimant's credibility.
Massanari, 261 F.3d 853, 857
(9th Cir. 2001).
An ALJ may also
rely on the lack of objective medical evidence of limitations to
discredit a claimant's testimony.
Turner v. Comm'r of Soc. Sec.,
613 F.3d 1217, 1225 (9ili Cir. 2010)
The ALJ noted Plaintiff's testimony "concerning the
intensity, persistence and limiting effects of [her) symptoms"
was inconsistent with her activities of daily living.
example, the ALJ noted Plaintiff was able to live alone
independently, to perform selfcare and personal hygiene, and to
drive a vehicle.
The ALJ also noted Plaintiff talks with friends
and family on the telephone daily; visits with friends once a
week; grocery shops; does mechanical work on her car; watches
television; prepares meals; attends yoga and pilates classes; and
performs household chores such as vacuuming once a week, taking
out the trash, cleaning her apartment, and doing laundry.
Tr. 204, 465, 1091-92, 1096, 1099, 1227, 1346.
Plaintiff's activities do not necessarily indicate her ability to
perform work activities, they are inconsistent with her alleged
level of impairment and support the ALJ's adverse inference as to
17 - OPINION AND ORDER
Accordingly, on this record the Court concludes the ALJ did
not err when he partially rejected Plaintiff's testimony because
he provided clear and convincing reasons supported by substantial
evidence in the record for doing so.
The ALJ did not err when he did not give significant weight
to the lay-witness testimony and statements of Evelyn Burbee
and Phyllis Dean.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
Lewis v. Apfel, 236 F.3d 503, 511
See also Merrill ex rel. Merrill v. Apfel, 224
F.3d 1083, 1085 (9th Cir. 2000) (" [A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
The ALJ's reasons
for rejecting lay-witness testimony must also be "specific."
Stout v. Comm'r,
454 F.3d 1050, 1054 (9th Cir. 2006).
ALJ's error lies in a failure to properly discuss competent lay
testimony favorable to the claimant, a reviewing court cannot
consider the error harmless unless it can confidently conclude
that no reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination."
F.3d at 1056.
Plaintiff's mother, Evelyn Burbee, testified at the November
18 - OPINION AND ORDER
2013 hearing that she stays with Plaintiff every week for three
or four days.
Burbee testified she helps Plaintiff with "heavy
cleaning," moving furniture, cooking, and washing dishes.
Burbee stated Plaintiff does things in ten-to-fifteen
minute increments and then lies down for thirty-to-sixty minutes.
Plaintiff does chores and other activities but cannot
do "anything all at once."
Burbee stated there are
days when Plaintiff does not do anything and is in bed for twoto-three days.
Phyllis Dean provided a statement on September 18, 2009, in
which she noted she sees Plaintiff at least once per week.
Dean stated Plaintiff's anxiety has become worse
because of her health problems and her financial situation.
Plaintiff complains to Dean "much more about pain in her lower
back, and how much worse it is."
Dean noted Plaintiff
goes grocery shopping, but only makes small purchases because she
cannot lift "very much."
for a few hours.
Plaintiff gets tired even after sitting
Dean noted Plaintiff "manages her personal
hygiene, does some housekeeping, and cooks for herself."
The ALJ did not give significant weight to the testimony and
statements of Burbee and Dean on the ground that the "objective
medical evidence fails to contain findings that would support the
extent of the pain complaints and related limitations" described
19 - OPINION AND ORDER
by Burbee and Dean.
The ALJ noted again that the
record reflects Plaintiff's gait and extremity strength have been
consistently normal, x-rays and MRis have reflected only mild-tomoderate issues, and Plaintiff reported improvement with
The ALJ also noted Burbee and Dean relied on
Plaintiff's subjective reports and presentation, which the ALJ
has found were not fully credible.
The Court concludes on this record that the ALJ did not err
when he did not give significant weight to the testimony and
statements of lay-witnesses Burbee and Dean because the ALJ
provided specific reasons germane to the witnesses for doing so.
III. The ALJ did not err when he assessed Plaintiff's RFC.
Plaintiff asserts the ALJ erred when he did not reassess
Plaintiff's RFC, but instead adopted the RFC finding from the
The ALJ, however, conducted a thorough
examination and evaluation of the record and concluded it "fails
to show any significant change in [Plaintiff's] condition since
the  decision."
Plaintiff notes she was diagnosed with fibromyalgia in 2013,
which was not diagnosed in 2004.
According to Plaintiff,
therefore, the ALJ should have reached a different conclusion in
his assessment of her RFC.
The ALJ, however, explained:
Although a diagnosis of fibromyalgia has been
confirmed by a rheumatologist, [Plaintiff's] pain
complaints and reported symptoms have remained the
same, as have the objective findings, which have
20 - OPINION AND ORDER
been largely unremarkable and primarily limited to
subjective reports of tenderness and limitation of
Significantly, [Plaintiff] has
consistently had normal gait and strength,
negative straight leg raise, and no evidence of
In addition, Plaintiff fails to identify any specific
limitations that the ALJ should have included in her RFC.
On this record the Court concludes the ALJ did not merely
adopt the RFC from the 2004 decision regarding Plaintiff's
limitations and he did not err in his assessment of Plaintiff's
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 27th day of January, 2017.
ANNA J. BROWN
United States District Judge
21 - OPINION AND ORDER
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