
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1972                                    PAMELA PIPER,                                Plaintiff, Appellant,                                          v.                           SHIRLEY S. CHATER, COMMISSIONER,                           SOCIAL SECURITY ADMINISTRATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Jonathan P. Baird on brief for appellant.            _________________            Paul  M.  Gagnon,  United  States  Attorney,  David  L. Broderick,            ________________                              ___________________        Assistant  United States  Attorney,  and  Wayne  G.  Lewis,  Assistant                                                  ________________        Regional  Counsel,  Social  Security  Administration,  on  brief   for        appellee.                                 ____________________                                  February 10, 1998                                 ____________________                      Per Curiam.  Pamela Piper, who suffers from urinary                      __________            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,                                                ___  _______    ________            921 F.2d 816,  822 (8th Cir. 1990)  (an ALJ may not  ignore a                                         -2-            "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.                                                    ___ _____________            Secretary of Health & Human  Services, 955 F.2d 765, 769 (1st            _____________________________________            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.                      _________                                         -3-
