Piper v. Chater ( 1998 )

[NOT FOR PUBLICATION]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
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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.
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.
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