Piper v. Chater ( 1998 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1972





                                    PAMELA PIPER,



                                Plaintiff, Appellant,



                                          v.



                           SHIRLEY S. CHATER, COMMISSIONER,

                           SOCIAL SECURITY ADMINISTRATION,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Shane Devine, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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                                 ____________________



            Jonathan P. Baird on brief for appellant.
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            Paul  M.  Gagnon,  United  States  Attorney,  David  L. Broderick,
________________                              ___________________

        Assistant  United States  Attorney,  and  Wayne  G.  Lewis,  Assistant
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        Regional  Counsel,  Social  Security  Administration,  on  brief   for

        appellee.





                                 ____________________



                                  February 10, 1998

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                      Per Curiam.  Pamela Piper, who suffers from urinary
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            incontinence and other impairments, appeals from the district



            court's  judgment upholding the denial of her application for



            Social  Security  benefits  by  the  Commissioner  of  Social



            Security.  After  a careful review of the  record, we affirm,



            essentially for  the reasons  given in  the district  court's



            opinion.  The  following addresses only the  most significant



            issue raised by appellant.



                      Piper  objects  to the  hypothetical  posed  by the



            administrative law  judge  (ALJ) at  her disability  hearing.



            She contends that the ALJ  erred in postulating an individual



            who  needed to  use the  bathroom  "at will."   Although  the



            vocational  expert  (VE)  originally testified  that  such an



            individual could  perform certain  sedentary and  light jobs,



            the VE later clarified that the individual could not do so if



            the bathroom trips were "frequent,"  i.e., took place ten  or



            more times per eight-hour work  day in addition to breaks and



            lunch, or more than once  per hour in addition to  breaks and



            lunch.  In his opinion, the  ALJ used the ambiguous "at will"



            language in describing  Piper's limitations and did  not make



            an express finding  on the critical question  whether Piper's



            use of the  bathroom was frequent.  See  Ellison v. Sullivan,
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            921 F.2d 816,  822 (8th Cir. 1990)  (an ALJ may not  ignore a















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            "critical  assumption"   underlying  a   vocational  expert's



            testimony).



                      Like the district  court, we conclude that  the ALJ



            implicitly  and supportably determined that Piper did not use



            the bathroom so frequently as to preclude employment.   Based



            on  her treatment  and  employment  history,  activities  and



            reported tendency  to exaggerate  her symptoms,  the ALJ  was



            warranted in concluding that her need for bathroom breaks was



            below the more  than one time  per hour figure  which the  VE



            said would compromise  her ability to work.  It was the ALJ's



            responsibility to determine issues of credibility and to draw



            inferences from the  record evidence.   See Irlanda Ortiz  v.
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            Secretary of Health & Human  Services, 955 F.2d 765, 769 (1st
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            Cir.  1991) (given the  claimant's treatment history  and the



            medical evidence,  the ALJ did  not err in deciding  that the



            claimant's  complaints  were  not  credible  "to  the  extent



            alleged").



                      Affirmed.
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