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Donna J. Smith v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 27, 2012

DONNA J. SMITH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income benefits under Title XVI of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by finding that: (1) plaintiff failed to meet her burden to show that her alleged impairments were "severe" within the meaning of the Act; and (2) plaintiff was not credible to the extent that her testimony conflicted with the finding that plaintiff lacked a severe impairment or combination of impairments. (See generally Pl.'s Memo. of P. & A. In Supp. of Mot. for Summ. J. at 1, Dkt. No. 12.) Plaintiff asks the court to remand this matter to the agency so that these alleged errors may be addressed. The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment (Dkt. No. 13.) For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND*fn2

A. Procedural History

On July 17, 2007, plaintiff filed an application for Social Security Income ("SSI")

benefits that alleged a disability onset date of January 1, 2003. (Admin. Tr. ("AT") 92.) Plaintiff subsequently amended her onset date to July 17, 2007, the date that plaintiff applied for benefits. (AT 137.)

The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 54-55, 58-63, 65-70.) Despite being represented by counsel, plaintiff refused to attend a consultative medical examination arranged by the agency or provide sufficient information to the agency in support of her application for SSI benefits. (See AT 58, 65-66.)

Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on August 21, 2009. (AT 20-53, 72.) Plaintiff was represented by counsel at the hearing and testified. A vocational expert also testified at the hearing.

In a written decision dated December 18, 2009, the ALJ denied plaintiff's application for benefits on the basis of a finding at the second step of the five-step sequential analysis that plaintiff did not have a "severe" impairment or combination of impairments within the meaning of the Act.*fn3 (See AT 11-16.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (See AT 1-3.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required sequential evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful employment since July 17, 2007, which was plaintiff's amended disability onset date and the date that plaintiff filed her application for benefits. (AT 13.)

At step two, the ALJ found that plaintiff had "the following medically determinable impairments: asthma, high blood pressure, Graves disease,*fn4 obesity and bilateral knee minor osteoarthritis." (AT 13.) The ALJ also acknowledged in her decision that plaintiff alleged disability due to irritable bowl syndrome, vertigo, and "MRSA (staph infection)."*fn5 (See AT 14.) However, the ALJ concluded at step two of the analysis that: "The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 416.921 et seq.)." (Id.) In finding no "severe" impairment or combination of impairments, the ALJ also discounted the credibility of plaintiff's statements, finding that plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with finding that the [plaintiff] has no severe impairment or combination of impairments." (AT 14; see also id. at 14-16.) As a result of the finding of a lack of any severe impairment or combination of impairments, the ALJ ultimately found that plaintiff was not disabled under the Act. (See AT 16.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

III. DISCUSSION

Plaintiff asserts two overarching, but somewhat overlapping, claims of error.

First, plaintiff claims that the ALJ failed to find, at step two of the five-step sequential analysis, that plaintiff had any severe impairment or combination of impairments. Second, plaintiff alleges that the ALJ's adverse credibility finding, which greatly impacted the ALJ's finding at step two, was made in error.

A. The ALJ's Determination At Step Two

Plaintiff offers three arguments in support of her contention that the ALJ erred at step two. First, she contends that the ALJ was required to proceed past step two of the sequential analysis because plaintiff was purportedly a "carrier" of MRSA, which resulted in plaintiff's inability to return to her previous work as a home healthcare provider. Second, plaintiff contends that although the ALJ addressed and relied on a September 2009 consultative medical report prepared by an examining physician, Dr. Fariba Vesali, the ALJ erroneously failed to address an October 2009 report prepared by Dr. Vesali that suggested that plaintiff had some functional limitations. Third, plaintiff contends that the ALJ failed to properly assess plaintiff's obesity.

At step two of the sequential evaluation, the ALJ determines whether the claimant has a medically "severe" impairment or combination of impairments. See 20 C.F.R. § 416.920(a)(4)(ii); see also Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). An impairment is severe when it significantly limits a claimant's "physical or mental ability to do basic work activities" and lasted or is expected to last "for a continuous period of at least 12 months." See 20 C.F.R. §§ 416.920(a)(4)(ii), (c), 416.921(a), 416.909.*fn6 Basic work activities refer to "the abilities and aptitudes necessary to do most jobs."*fn7 Although centered around the term "severe," "the step-two inquiry is a de minimis screening device to dispose of groundless claims." See Smolen, 80 F.3d at 1290 (citing Bowen, 482 U.S. at 153-54). The purpose is to identify "at an early stage those claimants whose medical impairment is so slight that it is unlikely they would be disabled even if their age, education, and experience were taken into account." Bowen, 482 U.S. at 153. "An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citations and quotation marks omitted).

1. Plaintiff's Purported Status As A "Carrier" of MRSA In or around May 2009, plaintiff was treated for a MRSA infection apparently incurred in connection with treatment for an abscess. (See AT 25-26, 197, 199-205, 216.) Despite treatment for the MRSA infection, plaintiff contends that she remains a "MRSA carrier." (See AT 39.) Although plaintiff testified at the hearing that her MRSA infection "resolved," she also testified that "they say I'm a carrier." (Id.) Plaintiff further testified that "they" told her that, as a precaution, she should wash her hands, and that "Dr. Davis gave [her] an antibiotic to put in [her] nose." (AT 40.)

Plaintiff now contends that because she is a "carrier" of the MRSA bacteria, she can no longer perform her past work as a "caregiver"; plaintiff provided care to her quadriplegic nephew until the year 1994. (AT 25.) In turn, plaintiff argues that because she cannot perform her past work-an issue ordinarily reserved for step four of the sequential analysis-the ALJ should have proceed past step two of the analysis. Plaintiff relies entirely on the following statement in Social Security Ruling ("SSR")*fn8 85-28, 1985 WL 56856 (1985), addressing evaluations at step two:

If the medical evidence establishes only a slight abnormality(ies) which has no more than a minimal effect on a claimant's ability to do basic work activities, but evidence shows that the person cannot perform his or her past relevant work because of the unique features of that work, a denial at the "not severe" step of the sequential evaluation process is inappropriate. The inability to perform past relevant work in such instances warrants further evaluation of the individual's ability to do other work considering age, education and work experience" [footnote omitted].

Plaintiff contends that her "carrier" status precludes her from performing "the unique features" of her past work.

As the Commissioner argues, there is no medical evidence in the record substantiating that plaintiff remained a "carrier" of MRSA, or that being such a purported carrier has any implications for plaintiff's ability to work. Rather than substantiate her status as a MRSA carrier with any medical records such as a treating physician's report, plaintiff relies only on her own statements that physicians apparently told her to wash her hands and use an antibiotic for an unspecified period of time. See SSR 85-28 ("At the second step of sequential evaluation, . . . medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities."); see also 20 C.F.R. § 416.908 (providing, in part, that "[a] physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms."). Indeed, there is no medical evidence to suggest that status as a MRSA "carrier" is a medically determinable impairment or a severe impairment. Additionally, there is no evidence in the record substantiating in any concrete detail what the "unique features" of plaintiff's prior work as a caregiver were such that she cannot return to that work because of the previous MRSA infection. The undersigned concludes that plaintiff's arguments focused on her MRSA infection are not persuasive, and the ALJ was not required to proceed past step two in regards to that infection.

2. Dr. Vesali's Second Medical Report

Next, plaintiff argues that the ALJ erred by not addressing one of the two medical reports prepared by Dr. Vesali, a consultative examining physician who conducted a comprehensive neurological evaluation of plaintiff on September 17, 2009. (See AT 238.) Following his examination of plaintiff, Dr. Vesail prepared a narrative report on or around September 17, 2009, which concluded that plaintiff had no functional limitations. (AT 242.) Dr. Vesali's report also states that plaintiff's condition would not impose any limitation for 12 continuous months. (Id.) However, Dr. Vesali subsequently prepared a function report, dated October 9, 2009, which indicates, contrary to the earlier report, that plaintiff had some functional limitations. (AT 232-37.) For example, Dr. Vesali noted that plaintiff could only occasionally-as opposed to frequently or continuously-climb ladders or scaffolding or tolerate exposure to dust, odors, fumes, and pulmonary irritants. (AT 235-36.) As with the prior report, Dr. Vesali's second report concluded that plaintiff's limitations had not lasted and would not last for 12 consecutive months. (AT 237.)

The ALJ relied on Dr. Vesali's September 2009 report in finding that plaintiff did not suffer from a severe impairment. (See AT 15 (relating that "Dr. Vesali indicated the claimant did not have a condition that would impose any limitation for 12 continuous months, and that the claimant had no functional limitations"); accord AT 16.) However, plaintiff correctly points out that the ALJ did not address Dr. Vesali's October 2009 report that partially contradicts the earlier report. Plaintiff argues that the ALJ's failure to discuss and specifically reject Dr. Vesali's October 2009 report constitutes reversible error.

The undersigned concludes that assuming the ALJ's failure to discuss Dr. Vesali's October 2009 report was error, it was harmless error because that failure was inconsequential to the ultimate non-disability determination. See, e.g., Robbins, 466 F.3d at 885 (stating that an ALJ's error is harmless if it is "inconsequential to the ultimate non-disability determination") (citation omitted). The ALJ's error was harmless because in both reports, Dr. Vesali consistently concluded that plaintiff's limitations, if any, had not lasted and would not last 12 continuous or consecutive months. (AT 237, 242.) As noted above, an impairment or combination of impairments is not severe at step two of the analysis unless it lasted or is expected to last for a continuous period of at least 12 months. See 20 C.F.R. § 416.920(a)(4)(ii) ("If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.") (emphasis added); 20 C.F.R. § 416.909 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. We call this the duration requirement.") (emphasis added); see also Montijo v. Sec'y of Health & Human Servs., 729 F.2d 599, 601 (9th Cir. 1984) (affirming the ALJ's decision that the appellant had not suffered from a severe physical impairment because the record did not demonstrate that the appellant suffered from a physical impairment lasting the required 12-month period). Here, regardless of the contradictory findings related to plaintiff's functional limitations, Dr. Vesali consistently found that plaintiff's limitations, if any, would not meet the 12-month duration requirement. Accordingly, any error by the ALJ in not specifically addressing the contradictory findings in Dr. Vesali's October 2009 report was harmless because the record still supports the ALJ's finding that plaintiff's impairments were not severe.

3. Plaintiff's Obesity

The ALJ found that one of plaintiff's medically determinable impairments was obesity. (AT 13.) However, the ALJ concluded that plaintiff's obesity was not a severe impairment. The ALJ stated that "[t]reating records did not contain evidence that [plaintiff's] obesity was causing any problems with her musculoskeletal system, including her knees, and no evidence she was referred for treatment for obesity." (AT 16.) In finding that plaintiff's obesity was not a severe impairment, the ALJ stated that she "considered the effects of obesity as required by Social Security Rulings but the record does not demonstrate any limitations or restrictions as a result of [plaintiff's] obesity." (Id.) Plaintiff contends that the ALJ erred by not considering plaintiff's obesity to be a "severe" impairment at step two, and failed to assess the impact of plaintiff's obesity as required by Social Security Ruling 02-1p, 2000 WL 628049, 67 Fed. Reg. 57,859-02 (Sept. 12, 2002).

SSR 02-1p states that "[o]besity is a complex, chronic disease characterized by excessive accumulation of body fat." It further states that obesity "commonly leads to, and often complicates, chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems," and "may also cause or contribute to mental impairments such as depression."

SSR 02-1p requires an ALJ to consider an individual's obesity at steps two through five of the sequential evaluation, and requires that obesity be considered in combination with the individual's other impairments. Ninth Circuit case law also requires an ALJ to determine the effect of a claimant's obesity on his or her other impairments. See Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). However, the plaintiff bears the burden of proving that her obesity exacerbated her other impairments. See Burch, 400 F.3d at 682.

As noted above, the ALJ considered plaintiff's obesity and the applicable Social Security Rulings at step two of the sequential analysis and found that obesity was not a severe impairment. (See AT 16.) After considering the entire record, the ALJ concluded that plaintiff's obesity was not itself a severe impairment and did not exacerbate any other impairments. Plaintiff speculates that the existence of knee pain suggests that her obesity impacted her other conditions. However, plaintiff's speculation is unsupported by any medical records, like a treating physician's report, suggesting a connection between plaintiff's obesity and any other condition. Moreover, the ALJ specifically found that plaintiff's obesity did not impact plaintiff's knee problems. (AT 16.) The ALJ found that the record failed to show that plaintiff's obesity restricted plaintiff's ability to perform work-related activities, or that plaintiff sought any treatment for her obesity. Accordingly, plaintiff did not meet her burden at step two, and the undersigned concludes that the ALJ did not err is assessing plaintiff's obesity and finding that obesity was not a severe impairment. See Burton v. Astrue, 310 Fed. Appx. 960, 961 n.1 (9th Cir. 2009) ("Burton also argues that the ALJ erred in failing to consider adequately Burton's obesity. Burton, however, does not specify how his obesity limits his functional capacity, or how it exacerbates his currently existing condition. Therefore, this argument does not provide a separate basis to challenge the ALJ's decision."); Hoffman v. Astrue, 266 Fed. Appx. 623, 625 (9th Cir. 2008) ("The ALJ's failure to consider Hoffman's obesity in relation to his RFC was proper because Hoffman failed to show how his obesity in combination with another impairment increased the severity of his limitations.").

B. The ALJ's Credibility Determination

As noted above, the ALJ found that plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with finding that the [plaintiff] has no severe impairment or combination of impairments." (AT 14.) Plaintiff argues that the ALJ erred in discounting plaintiff's credibility.

In Lingenfelter v. Astrue, the Ninth Circuit Court of Appeals summarized the ALJ's task with respect to assessing a claimant's credibility:

To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.

Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. . . .

Lingenfelter, 504 F.3d at 1035-36 (citations and quotation marks omitted). In weighing a claimant's credibility, an ALJ may consider, among other things, the "'[claimant's] reputation for truthfulness, inconsistencies either in [claimant's] testimony or between [her] testimony and [her] conduct, [claimant's] daily activities, [her] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains." Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)); see also Burch, 400 F.3d at 680 ("In determining credibility, an ALJ may engage in ordinary techniques of credibility evaluation, such as considering claimant's reputation for truthfulness and inconsistencies in claimant's testimony."). If the ALJ's credibility finding is supported by substantial evidence in the record, the court "may not engage in second-guessing." Thomas, 278 F.3d at 959.

Here, the ALJ's credibility determination turned on the second aspect of the above-stated test. (See AT 14.) Because the ALJ pointed to no evidence of malingering, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility.

The ALJ provided several reasons for discounting plaintiff's credibility, and the undersigned concludes that, on the whole, those reasons are clear and convincing and supported by substantial evidence. First, the ALJ pointed to inconsistencies in plaintiff's testimony or representations to the agency concerning her alleged limitations. (AT 16.) The ALJ stated that when plaintiff filed her application for benefits, no physical difficulties were observed, and plaintiff's application stated that plaintiff did not need help with personal care, hygiene, or upkeep of her home. (AT 16, 93, 102-03.) The ALJ permissibly concluded that these observations and representations were inconsistent with plaintiff's testimony at the hearing regarding her dramatically limited daily activities. (AT 16, 34-35.) Inconsistencies in testimony is a permissible basis for finding a claimant not credible. See Thomas, 278 F.3d at 958-59.

Second, the ALJ reasoned that plaintiff's complaints were "further eroded as there [was] no evidence from her treating sources that she was considered disabled or that she had any functional limitations." (AT 16.) The ALJ further noted in this regard that the record contained no evidence of "any surgery on her knees, no diagnostic studies related to her headaches, physical therapy, treatment at a pain clinic, or hospitalizations." (Id.) The ALJ properly considered the record of routine or no treatment relative to plaintiff's claims of disabling symptoms in discounting plaintiff's credibility. See Burch, 400 F.3d at 681 ("The ALJ is permitted to consider lack of treatment in his credibility determination."); see also Tommasetti, 533 F.3d at 1039 (finding that the ALJ permissibly "inferred that Tommasetti's pain was not as all-disabling as he reported in light of the fact that he did not seek an aggressive treatment program and did not seek an alternative or more-tailored treatment program after he stopped taking an effective medication due to mild side effects"). The record supports, and plaintiff does not materially refute, the ALJ's conclusion that plaintiff's treatments were conservative or nonexistent relative to plaintiff's claims of all-disabling impairments.

Third, the ALJ found plaintiff less credible, in part, "because the State agency determined there was insufficient evidence of a medical impairment." (AT 15 (citing AT 171-77, 190-95).) It is not entirely clear what the ALJ intended to convey by this statement. These reports essentially found insufficient evidence of any medical impairment because plaintiff failed to attend a consultative medical examination or provide medical records. Although plaintiff is correct that these State agency determinations were not made on a full record-and the Commissioner concedes that additional medical evidence was subsequently added to the record-that record was incomplete only because plaintiff failed to cooperate in the evaluative process. In terms of an ultimate determination that plaintiff was not disabled, sole reliance on these State agency records would be dubious. However, in terms of a credibility determination, it seems reasonable for the ALJ to note plaintiff's failure to cooperate in the evaluative process as a basis for a finding of diminished credibility given that an ALJ may consider ordinary techniques of credibility evaluation such as a plaintiff's reputation for truthfulness. In any event, the undersigned finds that the ALJ's reliance on the State agency records as a basis for the adverse credibility finding not entirely persuasive-but not fatal to the finding-given the ambiguity with which the ALJ stated the finding.

Fourth, in finding plaintiff less credible, the ALJ relied on Dr. Vesali's September 2009 finding that plaintiff had no functional limitations and did not have any conditions that would impose any limitation for 12 continuous months. (AT 15-16.) Plaintiff again attacks the ALJ's finding on the grounds that Dr. Vesali's September 2009 report was partially contradicted by Dr. Vesali's October 2009 report, which indicated some functional limitations. Nevertheless, the ALJ's finding is supported by both of Dr. Vesali's reports in that Dr. Vesali consistently found that plaintiff would not suffer from any limitations for 12 continuous months, and, as discussed above, the duration requirement is a fundamental feature of a finding of a severe impairment or a disability. Although the undersigned acknowledges the contradictions between Dr. Vesali's two reports, any error attributable thereto is harmless in light of Dr. Vesali's determination as to duration and the other reasons provided by the ALJ in support of the adverse credibility finding.

On the whole, the undersigned cannot conclude that the ALJ's adverse credibility finding was made in error. Because the credibility determination is supported by substantial evidence in the record, the undersigned will not second guess the ALJ.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Dkt. No. 12) is denied.

2. Defendant's cross-motion for summary judgment (Dkt. No. 13) is granted.

3. The Clerk of Court is directed to enter judgment in favor of defendant. IT IS SO ORDERED.


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