                                                                              FILED
                           NOT FOR PUBLICATION                                  AUG 04 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


RICK MACHADO,                                    No. 09-15984

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00955-TAG

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
                 Theresa A. Goldner, Magistrate Judge, Presiding

                        Argued and submitted June 16, 2010
                            San Francisco, California

Before: RIPPLE, Senior Circuit Judge,** RYMER and FISHER, Circuit Judges.


       Rick Machado appeals from the district court’s affirmance of the final

decision by the Commissioner of Social Security denying Machado’s application


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        ***
             The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
for supplemental security income benefits. We affirm in part, and reverse and

remand in part.

      The ALJ was not obliged to find Machado’s borderline intellectual

functioning per se severe, as Machado contends. See Vasquez v. Astrue, 572 F.3d

586, 596-97 (9th Cir. 2009) (remanding to the ALJ for a determination of whether

claimant’s borderline intellectual functioning was severe). His finding that it was

not severe at Step 2 is supported by substantial evidence. An impairment or

combination of impairments is “not severe” when medical evidence establishes

only a slight abnormality or a combination of slight abnormalities which would

have no more than a minimal effect on an individual’s ability to work. Soc. Sec.

Rul. 85-28; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ based

his findings on Dr. Hawkins’s post-hearing evaluation – the only evidence of

psychological impairment in the record. While Dr. Hawkins noted scores in the

low average to borderline deficit range for intellectual functioning and memory, he

indicated no functional limitations resulting from Machado’s impairment, except

for an inability to perform complex reading and math. Machado points to no

evidence suggesting his borderline intellectual functioning is more than a slight

abnormality. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th

Cir. 2009) (“The burden of proof is on the claimant at steps one through four

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. . . .”); see also Soc. Sec. Rul. 85-16 (noting that individuals who have an IQ

between 70 and 79 “should ordinarily be able to carry out [simple oral]

instructions” under limited supervision).

      Machado also argues that there is a conflict between the Vocational Expert’s

(VE) testimony and the Dictionary of Occupational Titles. Machado testified that

he had difficulty buttoning his shirt and picking up small items such as pennies and

that he had been fired from his job as a busboy because he kept dropping glasses.

All four of the positions that the VE testified were available to Machado exclude

individuals whose manual dexterity and finger dexterity is in the bottom 10 percent

of the population. The ALJ made no findings on whether Machado’s condition fits

within this parameter. We believe the ALJ needed to take Machado’s testimony

into account and to make findings as to whether all of Machado’s limitations in

manual dexterity and finger dexterity put him into the excluded category. See Soc.

Sec. Rul. 00-4p; Bray, 554 F.3d at 1234; see also Robbins v. Soc. Sec. Admin., 466

F.3d 880, 886 (9th Cir. 2006) (“[A]n ALJ is not free to disregard properly

supported limitations.”).

      Accordingly, we affirm on the issue of borderline intellectual functioning,

but reverse and remand for the ALJ to revisit the issues of manual dexterity and

finger dexterity. He should, specifically, determine whether Machado’s limitations

                                            -3-
put him in the bottom 10 percent of the population.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Each party shall bear its own costs on appeal.




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